Young Companies, Inc. v. Bayou Corp., 7895

• Citation: 545 S.W.2d 901
• Decision Date: 06 January 1977
• Docket Number: No. 7895,7895
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Parties: The YOUNG COMPANIES, INC., et al., Appellants, v. BAYOU CORPORATION, Appellee.

Page 901

545 S.W.2d 901

The YOUNG COMPANIES, INC., et al., Appellants, v. BAYOU CORPORATION, Appellee.

No. 7895.

Court of Civil Appeals of Texas,

Beaumont.

Jan. 6, 1977.

Andrew C. Brown, Houston, for appellants.

Stephen Wayne Hanks, Houston, for appellee.

STEPHENSON, Justice.

Plaintiff, Bayou Corporation, brought this action, November 22, 1974, against defendant, The Young Companies, Inc., as a sworn account and for attorney's fees under Tex.Rev.Civ.Stat.Ann. art. 2226. Defendant answered with a general denial. Plaintiff then on December 27, 1974, served that defendant with requests for admissions. May 21, 1975, plaintiff filed a motion for summary judgment and a motion to have the admissions to be deemed admitted because of that defendant's failure to answer and for judgment.

Then July 25, 1975, plaintiff filed its first amended petition naming Young America Construction Corporation and Vernon R. Young, Jr., as additional defendants. This amended petition alleged a cause of action in the nature of a sworn account and also that plaintiff furnished material and goods for the construction of certain improvements; that the owner of such improvements paid money to these defendants and that Vernon R. Young, Jr., became a trustee of such funds and is liable to plaintiff under the provisions of Tex.Rev.Civ.Stat.Ann. art. 5472e (Supp.1976--1977). A general denial was filed on behalf of Vernon R. Young, Jr. November 6, 1975, interrogatories were served upon Vernon R. Young, Jr., and requests for admission were served upon the new corporate defendant and the original corporate defendant. On November 25, 1975, plaintiff filed motions to compel all three defendants to answer the interrogatories and to have the requests for admission deemed admitted and for judgment.

Defendants answered such motion to compel answers and filed a motion to quash the interrogatories. An order was entered by the trial court December 22, 1975, which recited the appearance of the attorneys for plaintiff and defendants on December 15, 1975, and ordered all three defendants to answer the interrogatories on or before thirty days after rendition or defendants' answers would be stricken and judgment for plaintiff entered. Also, on December 22, 1975, an order was entered that the requests for admission submitted to the two corporate defendants be deemed admitted.

December 26, 1975, an answer by all three defendants was filed to interrogatories 14 through 31. The answers contained ten 'unknowns' and seven 'denieds'. The one question answered was 'Vernon R. Young, Jr.' when asked, 'State the name of the person answering these Requests and Interrogatories on behalf of Defendant, and the nature of your relationship to the Defendant.'

March 25, 1976, plaintiff filed a motion to have the answers of all three defendants stricken, and for judgment. April 9, 1976, defendant Vernon R. Young, Jr., filed an amended answer to the interrogatories and also a response to plaintiff's motion to strike the answers and for judgment.

April 28, 1976, the trial court entered an order striking the answers of all three defendants and granting judgment to plaintiff as to all three defendants jointly and severally.

Defendants complain here that it was an abuse of discretion by the trial court to strike the defendants' answers and enter judgment for plaintiff. All parties agree that the imposition of penalties or sanctions for failure or refusal of a party to comply with discovery rules is directed to the sound discretion of the trial court. Further, that the court's action can be set aside only upon a showing of a clear abuse of discretion. Meyer v. Tunks, 360 S.W.2d 518 (Tex.1962).

It is abundantly clear from a reading of the record before us that all three defendants were acting in bad faith in the answers given by them until Vernon R. Young, Jr., filed an amended answer and response April 9, 1976. That was three days before the trial court had a hearing on plaintiff's motion to strike defendants' answers and to enter judgment for plaintiff. That was also eighteen days before the judgment was entered from which this appeal was taken. No attempt was made to correct the situation as it existed as to the corporate defendants. There was no abuse of discretion on the part of the trial court in striking the answers of the two corporate defendants and entering the judgment against them.

The question remaining before us is whether the trial court abused its discretion in taking that action against Vernon R. Young, Jr. He was made a party to this suit July 25, 1975, and interrogatories were served upon him November 25, 1975. It is safe to say that his answers filed December 26, 1975, were not responsive and...