Woodruff v. Cook

• Decision Date: 27 June 1986
• Docket Number: No. 05-85-00516-CV,05-85-00516-CV
• Citation: 721 S.W.2d 865
• Parties: Annie M. WOODRUFF, Appellant, v. David P. COOK, Independent Administrator With Will Annexed to the Estate of Cecil R. Marriott a/k/a Cecil Raymond Marriott and Cotton Marriott, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 865

721 S.W.2d 865

Annie M. WOODRUFF, Appellant, v. David P. COOK, Independent Administrator With Will Annexed to the Estate of Cecil R. Marriott a/k/a Cecil Raymond Marriott and Cotton Marriott Deceased, Appellee.

No. 05-85-00516-CV.

Court of Appeals of Texas Dallas.

June 27, 1986.

Rehearing Denied Oct. 22, 1986.

Martin L. Peterson, Stephenville, for appellant.

Bryant C. Boren, Mark A. Fankhauser and David Godbey, Dallas, for appellee.

Before AKIN, CARVER ¹ and STEWART ², JJ.

ON MOTION FOR REHEARING

STEWART, Justice.

In our original opinion, we reversed the trial court on a point of error urging that appellant had not received adequate notice of the matters to be determined and the relief sought at a second hearing on a motion of appellee for contempt and sanctions. Subsequently, the supreme court issued its decision in Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985). We conclude that the holdings in that case mandate a reconsideration of our original decision; consequently, we grant the motion for rehearing, withdraw our prior opinion, and substitute this opinion therefor.

Annie M. Woodruff brought this appeal from a declaratory judgment suit. The suit was filed by David Cook, Independent Administrator of the Estate of Cecil R. Marriott, to have Woodruff declared not to have been the common-law wife of Cecil R. Marriott, deceased. As a sanction under rule 215, Woodruff's answer to the declaratory action was stricken by the trial court and the judge refused to grant her leave to file an amended answer. Thus the Estate obtained a default judgment against Woodruff. In four points of error, Woodruff contends that the trial court erred: (1) in granting the default judgment as a discovery-abuse sanction, because to do so was unjust and therefore an abuse of discretion; (2) in failing to give her an opportunity to correct any deficiency in her compliance with the court's order for production, thereby depriving her of due process; (3) in granting the default judgment because the notice given informed Woodruff that a hearing was scheduled to determine only whether she was guilty of constructive contempt of court, not for further action on the Estate's motion for sanctions; and (4) failing to grant Woodruff a rehearing on the motion for sanctions because no statement of facts was made at the hearing, and Woodruff has therefore been deprived of appellate review through no fault of her own. We disagree with all of Woodruff's contentions and, accordingly, affirm the trial court's judgment.

In her first point of error, Woodruff contends that the trial court erred in granting a default judgment against her. Specifically, she maintains that she adequately explained her failure to timely produce some documents and her nonproduction of others requested; that Cook neither alleged nor proved actual harm as a result of her non-compliance with the production order; and that therefore the trial court's choice of the harshest available sanction was unjust and punitive, thus constituting an abuse of discretion.

On July 5, 1984 Cook filed suit as Independent Administrator of the Estate of Cecil R. Marriott to have the trial court declare that Woodruff was not the common-law wife of Marriott. From July through October, 1984, Cook attempted to procure documents from Woodruff by informal discussion, letter of request, subpoena duces tecum and request for production of documents. When no documents had been produced, Cook filed his motion to compel on November 30, 1984. The motion was set for hearing on December 7. On December 7, before the hearing, Woodruff's counsel in Stephenville called Cook's counsel in Dallas offering to agree to document production. An agreed order was drafted and, with the consent of Woodruff's lawyer, Cook's lawyer appeared before the trial court at the appointed time. The trial judge signed the agreed order specifying that the requested documents were to be furnished by December 21. This order was very comprehensive, requiring production of documents generated by or about Woodruff and/or Marriott relevant to the period that Woodruff claimed to have been Marriott's common law wife and relevant to the community estate that she claimed existed for division between her and the estate. Appellant furnished no documents by December 21.

On January 4, 1985, Cook filed his motion for contempt and sanctions based upon Woodruff's failure to abide by the December 7 order. On the morning of January 28, the original date for hearing the contempt and sanctions motion, one of Woodruff's attorneys called Cook's attorney and said the documents were "on their way" from Stephenville to Dallas. Cook's attorney replied that, if the documents did not arrive in time, the hearing would go forward. When the documents had not arrived thirty minutes before the time set for the afternoon hearing, Cook's counsel went to the court house, where he received a call informing him that Woodruff's counsel was in his office with the documents. Cook's counsel pursued the hearing for the purpose of obtaining attorney's fees for his court appearance but agreed by telephone with Woodruff's counsel to defer further action on the motion until examination of the tender for sufficiency. Upon later examining the tender, Cook's counsel found that it consisted of a trash bag containing a few loose documents, two paper bags of bank statements, and a box of Marriott's records that he had previously reviewed. Concluding that the tender was insufficient under the agreed order, he reset the motion for contempt and sanctions for hearing on February 7. Woodruff's counsel filed a motion for continuance but neither set it for hearing nor appeared at the February 7 hearing. The court found that Woodruff had failed to produce the documents required by the production order, struck Woodruff's answer, and set the case for default prove-up on February 14, 1985.

On that date, Cook appeared with witnesses to present evidence in support of his case and Woodruff's counsel appeared on her behalf and cross-examined all witnesses presented by Cook. At the conclusion of the hearing, the trial court entered an interlocutory default judgment declaring that Woodruff was not decedent's common-law wife. Cook later moved to nonsuit his claim for damages and injunctive relief and the trial court entered a final declaratory judgment.

Thereafter, Woodruff filed a motion to set aside or modify order for sanctions and interlocutory default judgment (later converted to a motion for new trial by stipulation). The Court, on March 28, held a hearing thereon and heard evidence on Woodruff's excuses for non-compliance and failure to appear. Woodruff testified at the hearing that her failure to produce documents by December 21, in compliance with the court's December 7 order, was because she was physically assaulted on December 4 and was recuperating for ten days thereafter.

She also testified that she had delivered to her attorneys all the records that she had or knew of. However, on cross-examination she admitted that there was a written lease on deceased's ranch, an insurance policy on personal property at the ranch, and checks and statements on her personal bank account, all of which were subject to the production order. These documents were never produced.

In addition, her attorney testified that he failed to appear on February 7 upon the assumption that his motion for continuance due to a conflicting prior court setting would be granted and that he in fact appeared in both the district court and the court of appeals in Eastland that day. At the conclusion of the hearing, the trial court denied Woodruff's motion for new trial.

In considering the imposition of sanctions, the test for abuse of discretion is whether the trial court's act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985) The trial court reconsidered its sanctions order at the March 28 hearing on Woodruff's motion to set side/motion for new trial:

In doing so, it is presumed that the court is familiar with the entire record of the case up to and including the motion to be considered. The plenary jurisdiction of the trial court in this case continued through the final judgment and overruling of [Woodruff's] motion for new trial.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d at 241.

Thus, the trial court here was free to consider the entire record before it, including whether Woodruff's failure to produce documents and appear at hearings was due to intervening circumstances or due to a conscious disregard of court rules; whether the last-minute offer on December 7 to comply by December 21 and the last-minute partial tender on January 28 were simply means to avoid the hearing on the motion for contempt and sanctions or a good faith effort at compliance; and whether the failure of Woodruff's counsel to appear on February 7 was in conscious disregard of the sanctions hearing in preference to his court settings in Eastland. Under this record, we conclude that the trial court was not arbitrary or unreasonable in striking Woodruff's answer and granting default judgment; consequently, we hold there was no abuse of discretion.

Nevertheless, appellant contends that, even assuming that an intentional violation of the December 7 order was shown at the February 7 hearing, the sanction chosen by the trial court was neither appropriate nor just and that the trial court struck her answer as a punishment instead of as a means to enforce compliance with the discovery rules.

Woodruff cites Illinois Employers Ins. Co. of Wausau v. Lewis, 582 S.W.2d 242, 245 (Tex.Civ.App.--Beaumont 1979, writ ref'd n.r.e.), where the court stated that the "office of sanctions is to secure compliance with the discovery rules, not to punish erring parties." However, that court also stated that as long as the sanction chosen by the trial court is within its authority,...