Black v. Texas Department of Labor & Standards

816 S.W.2d 496, 1991 Tex. App. LEXIS 2076, 1991 WL 162342
CourtCourt of Appeals of Texas
DecidedAugust 20, 1991
DocketNo. 6-90-060-CV
StatusPublished
Cited by1 cases

This text of 816 S.W.2d 496 (Black v. Texas Department of Labor & Standards) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Texas Department of Labor & Standards, 816 S.W.2d 496, 1991 Tex. App. LEXIS 2076, 1991 WL 162342 (Tex. Ct. App. 1991).

Opinion

OPINION

CORNELIUS, Chief Justice.

Anna Black appeals from an adverse judgment in a nonjury trial involving a letter of credit issued pursuant to Tex.Rev. Civ.Stat.Ann. art. 5221/, § 1 et seq. (Vernon 1987 & Supp.1991), the Health Spa Act.

The Health Spa Act requires that each health spa operating in Texas, for the protection of its members, must file a surety document in the amount of $20,000.00 with the Texas Department of Labor and Standards.1 The surety document may be a letter of credit, payable to the State, issued by a properly insured financial institution. Financial losses chargeable against the security are limited to any unused or unearned portion of a health spa member’s dues or fees.

The letter of credit involved here was issued by the American Savings Bank. It was supported by a $20,000.00 cash deposit by Anna Black. Its purpose was to protect members of the Dynafit Health Spa from [498]*498loss of their membership fees if the spa ceased operation. Until January 7, 1988, Dynafit had operated under contract a health spa known as the Supreme Court Racquet Club. On that date, Dynafit assumed operation of the Racquet Club spa under its own name, and the members of the former spa became members of Dynafit without payment of additional fees. Dy-nafit also enrolled additional members after January 7, 1988.

On December 8, 1988, the Department of Labor and Standards’ general counsel sent a letter to the American Federal Savings Bank advising that the Dynafit Corporation had ceased operation and that there were 130 claims against Dynafit for unearned fees or dues totaling more than $25,000.00. The Department’s letter further stated that according to the terms of the Bank’s letter of credit, it was then payable to the state in its total amount because the claims exceeded $20,000.00.

When Anna Black learned of the demand, she advised the Bank that she would contest payment under the letter. As a result, the Bank refused to pay.

The Department filed suit against the Bank to collect the amount demanded. Black, who had posted $20,000.00 cash collateral with the Bank to support the letter of credit, intervened in the suit. She contended that the Department had failed to make a proper demand for payment on the letter of credit, that only members who had joined Dynafit after the Supreme Court Racquet Club closed operations were covered, and that the claims must be reduced to judgment before there can be a recovery on the letter.

In a trial to the court, judgment was rendered against the Bank for the $20,-000.00 represented by the letter of credit, together with attorney’s fees. Black was denied relief, and only she has appealed.

On appeal, Black reurges her contentions in the trial court and also asserts error because the trial court allowed the Department to introduce a list of persons who had filed claims against Dynafit when the list had not been timely identified in response to interrogatories. We overrule all these contentions and affirm the judgment.

Black served interrogatories on the Department. Number 5 asked for designation and copies of all documents which the Department intended to use as evidence. The Department answered the interrogatory by listing only the letter of credit in question, Dynafit’s application for registration to operate the health spa, and a copy of a letter from the Department’s general counsel demanding payment on the letter of credit. Eight days before trial, the Department filed a motion for leave to supplement its answers to include a list of the individual claims that had been filed against the letter of credit and on which the total claim of more than $25,000.00 was based.

When trial began, the court heard argument on whether good cause existed to allow the Department to introduce the list described in its motion to supplement. After argument, the court admitted the supplemental answers, thus impliedly finding there was good cause for their admission. Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 877 (Tex.App.—Corpus Christi 1988, writ denied).

Black’s first contention on appeal is that the court erred in admitting the list into evidence because the Department had not timely supplemented its answers. Tex. R.Civ.P. 166b(6) requires that supplemental answers be filed not less than thirty days before trial unless the court finds good cause for permitting later supplementation. Black argues that the list of claims contained in the supplemental answer should not have been admitted in evidence, and that without those claims the Department’s case failed.

To support good cause, the Department argued that it did not supplement its answers earlier because, before the suit was even filed, it had provided Black a list of the various claims which then existed; that it believed the list of claims would be agreed or stipulated at trial; that when it learned from Dynafit’s counsel eight days before trial that Dynafit intended to contest the Department’s use of the evidence, it immediately prepared and furnished Dy-[499]*499nafit with the supplemented answer and moved the court for leave to supplement; that the summary of the claims was not provided earlier because it was prepared only eight days before trial, when the Department learned Black intended to contest the claims; and that the summary list was offered solely to show the total amount of claims filed against Dynafit.

At the conclusion of the hearing, the court admitted the evidence as Plaintiffs Exhibit 2. Exhibit 2 was the list of complainants against Dynafit which had been a part of the supplemental answer to the interrogatories.2 The court also admitted Exhibit 3, a letter from Black’s counsel, William Turman, to the Department’s counsel, written on January 4, 1988, more than a year before the Department filed suit. In that letter, Turman used the phrase “Pursuant to your production of the list of claimants_” That statement supports the Department’s claim that Black had a list of claimants long before trial, lacking only the summary and update which was provided in the supplemental answer eight days before trial.

As support for her contention that the Department’s good cause evidence was insufficient, Black cites the case of Sharp v. Broadway National Bank, 784 S.W.2d 669 (Tex.1990). In that case, the trial court allowed an attorney to testify as an expert witness on attorney’s fees, even though he had not been designated as an expert witness in answers or supplemental answers to interrogatories, on the basis that the opposing party had deposed the attorney and knew of his intended use as an expert. The Supreme Court held that, assuming the explanations were true, they were insufficient to establish good cause for admission of testimony of a witness not properly identified in discovery. The court noted that the absence of surprise, unfairness, or ambush does not alone satisfy the good cause exception to the sanction of automatic exclusion. Sharp v. Broadway National Bank, supra.

The Department distinguishes Sharp from this case because Black already had the information she requested, even before she asked for it in the interrogatory, and because Sharp involved an undesignated witness. We believe these are valid distinctions.

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Related

Black v. Texas Department of Labor & Standards
835 S.W.2d 635 (Texas Supreme Court, 1992)

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816 S.W.2d 496, 1991 Tex. App. LEXIS 2076, 1991 WL 162342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-texas-department-of-labor-standards-texapp-1991.