Welex, a Div. of Halliburton Co. v. Broom

• Decision Date: 16 January 1991
• Docket Number: No. 04-89-00377-CV,04-89-00377-CV
• Citation: Welex, a Div. of Halliburton Co. v. Broom, 806 S.W.2d 855 (Tex. App. 1991)
• Court: Texas Court of Appeals
• Parties: WELEX, A DIVISION OF HALLIBURTON COMPANY, Appellant, v. Jerry Wayne BROOM, Appellee.

Page 855

806 S.W.2d 855

WELEX, A DIVISION OF HALLIBURTON COMPANY, Appellant, v. Jerry Wayne BROOM, Appellee.

No. 04-89-00377-CV.

Court of Appeals of Texas San Antonio.

Jan. 16, 1991.

Rehearing Denied March 22, 1991.

Marie R. Yeates, Penelope E. Nicholson, R. Glen Rigby, Eva C. Ramos, Vinson & Elkins, Houston, M.W. Meredith, Jr., Meredith, Donnell & Abernathy, Corpus Christi, William Powers, Jr., Austin, for appellant.

Arnulfo Gonzalez, Jr., Laredo, Russell H. McMains, Kimberly Hall Seger, McMains & Constant, Corpus Christi, for appellee.

Before CADENA, ^* C.J., and CHAPA and BIERY, JJ.

OPINION

CHAPA, Justice.

This is an appeal from a judgment entered against appellant Welex, a Division of Halliburton Company. Appellee, Jerry Wayne Broom (hereinafter "Broom") brought a negligence action against Welex and Transamerican Natural Gas. Prior to trial, and in addition to other sanctions for discovery abuse, Welex was defaulted on liability. Transamerican settled with the appellee. At trial, evidence was heard on damages and on the comparative negligence of Broom, Transamerican and appellant. A jury found Broom not negligent, allocated comparative negligence at 1% on Transamerican and 99% on Welex, and awarded Broom over $2 million for his injuries.

The dispositive issues before us are:

1). whether the trial court committed reversible error in sanctioning appellant for discovery abuses, including defaulting appellant on liability;

2). whether the trial court committed reversible error in allowing appellee to present evidence in order to obtain a jury finding on comparative fault, while preventing Welex from presenting evidence preserved in Welex's bills of exceptions;

3). whether the trial court committed reversible error in overruling objections made by Welex during Broom's closing argument, and in subsequently refusing to grant Welex's Motion for New Trial;

4). whether the trial court committed reversible error in refusing to grant Welex's Motion for New Trial, Motion for Judgment Non Obstante Veredicto and Welex's request for remittitur, and further, in allowing Broom to amend his pleadings to reflect an increase in damages awarded by the jury because the evidence was factually and legally insufficient to support the jury's findings as to liability and damages;

5). whether the trial court committed reversible error in failing to reduce Broom's recovery by the amount that Transamerican paid Broom in settlement;

6). whether the trial court committed reversible error in refusing to allow Welex to make its bills of exceptions on the excluded testimony of Gonzalez and Anderson before the jury was charged; and

7). whether the trial court committed reversible error in ordering that pleadings and other papers received for Webb County would be treated as if filed with Zapata County, and in ordering that certain papers found at trial not bearing a "filed" stamp or a "received" stamp would be treated as if filed.

In a brief lacking citations to authority, appellant contends in its first point of error that the trial court committed reversible error in imposing a default sanction, pursuant to rule 215, as to liability for alleged discovery abuses. We note that the standard of review applicable in our analysis of appellant's contentions is whether the trial court abused its discretion.

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. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984). Rather, a trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Downer, 701 S.W.2d at 241-43; Cessna Aircraft, 665 S.W.2d at 443; Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App.--Corpus Christi 1976, no writ); King v. Guerra, 1 S.W.2d 373, 376 (Tex.Civ.App.--San Antonio 1927, writ ref'd). In ascertaining whether the trial court abused its discretion, the reviewing court must determine if the trial court acted without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). The trial court is free, however, to consider the entire record of the case up to and including the motion to be considered. Id. at 241. Thus, the trial court is not limited to considering only the specific violation committed but is entitled to consider other matters which have occurred during the litigation. Id. We emphasize, moreover, that the burden is on appellant to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP.P. 50(d). The reason for granting the default sanction in the present case was not given in the order. Unless the judgment or order limits or explicitly states the basis on which the order is given, this court must look to all the arguments before the court to determine if the court acted without justification. Brasher v. Carr, 743 S.W.2d 674, 683 (Tex.App.--Houston [14th Dist.] 1987), rev'd on other grounds, 776 S.W.2d 567 (Tex.1989).

The record reflects that suit was filed by appellee on March 5, 1987. On May 19, 1987, appellee sent its notice of intent to take the depositions of Van Hamilton and Roberto Martinez on July 2, 1987. The first discovery in the case took place on July 23, 1987, when four depositions were taken. Among the depositions taken on July 23rd was the deposition of Mr. Roberto Martinez, an employee of Welex. Mr. Martinez was partially deposed by appellee's attorney but the deposition was "recessed by agreement to be completed at a later date," because Martinez said that "he was just too tired and had put in a lot of work."

A pretrial conference was held on February 24, 1988. The agreed pretrial order provided, among other things: that discovery could continue until the day of trial; that appellee would provide a list of witnesses within forty-five (45) days before trial, and; that appellant would provide its list of witnesses within thirty (30) days before trial. The case was set for a trial date of October 11, 1988, with an alternative trial date of February 27, 1989. All attorneys later agreed to forgo the October 11, 1988 trial date.

On January 13, 1989, appellee noticed the depositions of various witnesses, including Martinez, for January 31st. Attached was a subpoena duces tecum requesting numerous documents, photographs, statements and reports that were "in the possession, constructive possession, custody or control of the Defendant, its attorney(s) or anyone acting on their behalf." Appellant's counsel, however, claimed that his offices did not receive notice of the scheduled deposition until January 16th. Appellant's counsel stated that the deposition notices were misplaced in his office and that, consequently, he omitted to produce his witnesses on the 31st.

Appellee further served its first set of interrogatories, its second set of interrogatories and a request for production on appellant. Included in the request for production were approximately thirty-eight (38) of the very requests described in appellee's subpoena duces tecum that was served on the proposed deponents scheduled for January 31, 1989.

On January 31, 1989, appellant filed a Motion for Protection alleging that "within six weeks of the trial date [appellee] has filed fourteen additional discovery documents, including extensive interrogatories ..., extensive Requests for Production ..." in addition to noticing numerous depositions. The motion was subsequently denied by the court.

On February 9, 1989, appellant filed its Second Motion for Protection and Motion for Sanctions, alleging that appellant had agreed that the three employees of appellant, Roberto Martinez, Ed Laycock and Walter Rouse, would be produced in the appellant's offices on February 8, 1989. Appellant argued that while the three employees had been produced, appellee's counsel refused to proceed with the deposition of Roberto Martinez after counsel learned that all of the documents described in appellee's notice of deposition had not been produced because Martinez "had no such documents, and had no possession, custody or control of such documents."

On February 10, 1989, appellee filed its Motion for Judgment by Default and Second Motion for Sanctions, arguing that appellee requested that appellant produce the documents identified in the subpoena duces tecum in order to properly take the deposition of Martinez but appellant refused to produce the records. Appellee's counsel argues that he began the deposition of Roberto Martinez but stopped when he learned that only Rouse had brought any documents sought pursuant to the subpoena duces tecum attached to the deposition notices. Counsel for appellant, however, refused to allow appellee's counsel to depose Rouse before Martinez' deposition was "completed."

On February 16, 1989, after all parties were duly noticed, a hearing on these motions was held, wherein all parties were present. Appellant contended that Martinez was not required to produce the subpoena duces tecum documents because they were not within Martinez's "possession, custody or control." After the hearing, the trial court granted appellee's Motion for Sanctions and granted a default judgment against Welex, thus limiting the trial to the issue of damages.

It is evident that the trial court considered many factors in deciding to impose the default sanction. Appellant primarily centers its argument on its failure to have its witnesses produce the documents requested by the subpoena. However, the court also considered the failure to produce the witnesses on other occasions, the refusal to allow the appellee to continue depositions ¹ and the immediacy of the trial setting.

In a recent opinion, the Texas Supreme Court held that "the trial...