Wyatt v. Shaw Plumbing Co.

• Decision Date: 25 June 1987
• Docket Number: No. 13-86-349-CV,13-86-349-CV
• Citation: 736 S.W.2d 763
• Parties: Oscar S. WYATT, Jr., Appellant, v. SHAW PLUMBING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 763

736 S.W.2d 763

Oscar S. WYATT, Jr., Appellant, v. SHAW PLUMBING COMPANY, Appellee.

No. 13-86-349-CV.

Court of Appeals of Texas Corpus Christi.

June 25, 1987.

Rehearing Denied Sept. 10, 1987.

Ken Dahlberg, Wood & Burney, Corpus Christi, for appellant.

Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellee.

Before SEERDEN, UTTER and DORSEY, JJ.

OPINION

SEERDEN, Justice.

A jury found that appellee was owed $177,935.79 for labor and materials furnished for construction of Wyatt's residence in Duval County, and that Morgan Spear was Wyatt's agent in requesting the labor and materials. The trial court added prejudgment interest to arrive at an award of $221,218.21. The jury also awarded $50,000 in attorney's fees for the trial and additional amounts for appeals. Wyatt challenges the judgment and several pretrial rulings by six points of error. We affirm the trial court's judgment.

In 1980, Wyatt entered into an oral agreement with Spear to design a house and have it built on Wyatt's property in Duval County. Spear arranged for appellee to do plumbing and related work on a cost-plus basis. Appellee submitted billing statements to Spear monthly, and Wyatt paid through Spear. Payment then ceased, and the parties disputed over the quality of the work and the legal relationship between appellee, Spear and Wyatt.

On January 20, 1983, appellee, through its attorney, sent Wyatt and Spear a demand letter for payment. On February 7, 1983, Wyatt filed a fraud and negligence action in Duval County against appellee, stating that appellee had received $464,011.05, but complaining of the work and bills. (Appellee asserted a plea of privilege to move that action to Nueces County.) When appellee sued Wyatt, Spear, and two of Spear's companies on sworn account in Nueces County on April 4, 1983, Wyatt filed a plea in abatement. This appeal is from the suit filed in Nueces County. The trial court overruled the plea in abatement on April 10, 1984, and entered its order on June 15, 1984. Spear and his companies filed a cross-action for indemnity and contribution from Wyatt. Thereafter, appellee deposed Spear and others.

By his first point of error, Wyatt contends that the trial court erred in granting appellee's Second Motion for Sanctions and for Protective Orders by striking Wyatt's answer, affirmative defenses, and counterclaim as sanctions for abuse of the discovery rules. Wyatt argues that he timely filed his answers to interrogatories, that the sanctions imposed are too severe and therefore unconstitutional, that the trial court abused its discretion in imposing these sanctions under these circumstances, and that it is unfair to penalize the client for attorney error under these circumstances.

On June 29, 1984, appellee filed a notice to depose Wyatt on July 12, 1984. At the request of Wyatt's attorney, his deposition was rescheduled for August 8, 1984, but he did not appear. The deposition was rescheduled for August 18, 1984, by agreement and was supposed to take place at Wyatt's residence in Duval County so that the parties could inspect the premises. However, Wyatt cancelled the inspection of his residence the day before the scheduled visit. He did appear at appellee's attorneys' offices at the deposition time. However, the parties did not take a deposition but entered into certain stipulations.

In the stipulations, executed effective August 18, 1984, and filed with the court on December 18, 1985, the parties agreed to continue the September 10, 1984, trial date; to postpone the deposition of Wyatt; and to continue the Duval County case until after disposition of the Nueces County case. Wyatt paid appellee $60,000 to be credited against any sum recovered in the suit. Wyatt would be given the opportunity to examine and audit Shaw's records from the job, at his expense. The last two items in the stipulation are:

7. Defendant, Oscar S. Wyatt, Jr., at his expense intends to perform a complete survey of his residence in Duval County to ascertain any and all construction defects or complaints pertaining to the construction of the residence in Duval County. A copy of the results of such survey shall be furnished to each party on or before December 1, 1984.

8. After the survey of the residence and after the completion of the audit, the parties will make a good faith effort to settle all matters in dispute. If a settlement cannot be effected, the depositions of the witnesses shall continue with appropriate notices to the parties.

Wyatt, however, did not provide results of a survey or a list of defects by December 1, 1984. Subsequently, counsel for appellee wrote four letters requesting the information.

On December 17, 1985, appellee's attorney sent Wyatt interrogatories and requests for admissions, and on December 20, 1985, appellee moved for sanctions against Wyatt for failure to provide the results of the survey. At the hearing on the motion for sanctions, the attorneys argued about whether Wyatt had agreed to undertake a survey at all. On January 20, 1986, the court by letter denied the sanctions, but stated that it would consider other sanctions on request and ordered "an expeditious deposition of defendant Wyatt." On January 22, 1986, appellee filed a Second Motion for Sanctions and for Protective Orders. On January 23, 1986, Wyatt filed a response to the interrogatories and requests for admissions, but objected to, instead of answering, Interrogatory No. 2, which requests Wyatt to list in detail all defects and complaints. The trial setting was February 17, 1986. On February 8, 1986, Wyatt was deposed, and testified to various complaints about appellee's work. However, he would not commit himself that those were all of the defects which would be raised. On February 14, 1986, the trial court heard Plaintiff's Second Motion for Sanctions and for Protective Orders. On February 20, 1986, it signed an order striking all of Wyatt's pleadings, affirmative defenses, and counterclaims.

We first examine Wyatt's claim that he timely answered the Interrogatories and Request for Admissions. The parties dispute the method of calculating the time for response under Tex.R.Civ.P. 21a. Under Tex.R.Civ.P. 168 subd. 4, answers to interrogatories shall be served on the party within the time specified, which shall be not less than thirty days after service. The document was mailed on December 17, 1985, and filed on December 18, 1985, and specifies that the answers shall be served in thirty days. Appellee begins to calculate the thirty days on December 18, 1985. However, Rule 21a states that service by mail is complete at the time of mailing, not at the time of receipt or of filing. Thus, we begin the calculations on December 17, 1985. Three days are added under Rule 21a because the interrogatories were served by mail. Thirty-three days after December 17, 1985, is January 19, 1986, a Sunday. Under Tex.R.Civ.P. 4, the due date becomes Monday January 20, 1986. On January 22, 1986, appellee filed a Second Motion for Sanctions and for Protective Orders. On January 23, 1986, Wyatt filed a response at the courthouse, but did not include an answer to Interrogatory Number 2. The response was not timely. Wyatt finally answered Interrogatory Number 2 on February 13, 1986.

Wyatt argues that the sanctions were inappropriate, unconstitutional, and an abuse of discretion. We disagree. In imposing sanctions, a trial court may consider the entire record in the litigation. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985); Medical Protective Co. v. Glanz, 721 S.W.2d 382, 388 (Tex.App.--Corpus Christi 1986, writ ref'd); Woodruff v. Cook, 721 S.W.2d 865, 868 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

The trial court was free to consider all of the attempts to depose Wyatt and to discover the specific defects he alleged against appellee, and all of the trial delays. In ruling on the second motion for sanctions, the trial court said, "considering all of the matters with respect to discovery, the court feels [the] relief sought is proper."

A trial court may impose sanctions on any party that abuses the discovery process. Tex.R.Civ.P. 215. The discovery sanctions imposed by a trial court are within that court's discretion. A trial court abuses its discretion if the sanction it imposes does not further one of the purposes that discovery sanctions were intended to further. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). The purposes of discovery sanctions are to: (1) secure the parties' compliance with the rules of discovery, Ebeling v. Gawlik, 487 S.W.2d 187, 190 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ); (2) deter other litigants from violating the discovery rules, Downer, 701 S.W.2d at 242; and (3) punish parties that violate the rules of discovery. Bodnow, 721 S.W.2d at 840; Jarrett v. Warhola, 695 S.W.2d 8 (Tex.Civ.App.--Houston [14th Dist.] 1985, writ ref'd).

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 trial court acted without reference to any guiding rules and principles. Downer, 701 S.W.2d at 241-42; Medical Protective, 721 S.W.2d at 386. Judges have been encouraged to use sanctions to the degree necessary to assure compliance with discovery procedures and to deter abuse of the process. Downer, 701 S.W.2d at 242.

If a party has violated the discovery process, the trial court may choose any of the sanctions listed in Rule 215 2.b. Medical Protective, 721 S.W.2d at 387; Woodruff, 721 S.W.2d at 869; City of Houston v. Arney, 680 S.W.2d 867, 870-71 (Tex.App.--Houston [1st Dist.] 1984, no writ). Wyatt has not demonstrated an abuse of discretion.

Wyatt raises a due process question, citing Myers v. Shekter, 775 F.2d 1385 (9th Cir., 1985) and Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S....