Eason v. Eason

860 S.W.2d 187, 1993 WL 282658
CourtCourt of Appeals of Texas
DecidedAugust 26, 1993
DocketB14-91-01382-CV
StatusPublished
Cited by23 cases

This text of 860 S.W.2d 187 (Eason v. Eason) 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
Eason v. Eason, 860 S.W.2d 187, 1993 WL 282658 (Tex. Ct. App. 1993).

Opinions

OPINION

SEARS, Justice.

Appellant appeals a final order modifying the existing conservatorship of her minor child. In two points of error, she complains that the trial court abused its discretion when it struck her general denial and denied her the right to present witnesses at trial, and that due to the sanctions, the Court did not fully consider what was in the best interest of the child. We affirm.

Appellant and Appellee were divorced on May 16, 1987. Managing conservatorship of their only child was awarded to the Appellant. On March 6,1990, Appellant petitioned the Court for an increase in child support. Appellee answered and cross-petitioned for custody. An attorney ad litem was appointed. The Appellant responded to the cross-petition with a general denial. In May of 1990, the Court ordered that the Appellant and Appellee pay the attorney ad litem fees. The order indicated that failure to pay the fees could result in their pleadings being stricken. In August of 1990, Appellant’s pleadings requesting additional child support were struck for failure to pay the ad litem’s fees.

A trial on the issue of modification was held on January 28, 1991. The Rule was invoked, and Appellee proceeded to his casein-chief. He introduced into evidence a picture of his son’s bruised legs. Appellee testified that the picture was evidence of Appellant’s abuse of the minor child. The Court recessed for the day and specifically instructed the parties not to discuss the case with [189]*189the child. The next day during cross examination of the Appellee, Appellant’s trial counsel asked him, “would you be surprised if your son told me this morning that these bruises were not caused by whippings?” The attorney ad litem objected that “nobody was supposed to discuss the case with the child.” Obviously, the child had been told about the picture and the testimony. The Court granted a mistrial. The case was reset for July 15, 1991. The Court then ordered that additional ad litem fees be paid. As of July 15, 1991, the Appellant had failed to pay some of those court-ordered fees.

On June 5,1991, the attorney ad litem sent Interrogatories and Requests for Production to the Appellant’s attorney. Appellant’s answers were due by July 5, 1991. In the interrogatories, the attorney ad litem specifically requested that the Appellant list all expert witnesses and fact witnesses she intended to call at trial. On July 11, 1991, the ad litem filed a motion to impose sanctions, to strike the Appellant’s pleadings, and to impose a default judgment, alleging the Appellant still had not answered the interrogatories or produced the requested documents. A hearing on the motion was scheduled for July 15, 1991. By the fifteenth of July, the Appellant had answered some, but not all of the interrogatories. She never fully answered the interrogatories or objected to them, and she never produced the requested documents. The attorney ad litem contends it was impossible to protect the best interest of the child without the requested production and identification of witnesses.

On July 15, 1991, the master in the ease struck the Appellant’s general denial and suggested granting a default judgment because of Appellant’s refusal to comply with prior orders of the Court and the ad litem’s requests for production. The Appellant appealed the master’s decision to the trial court. The Court affirmed the master’s decision, struck Appellant’s general denial, proceeded to trial, and excluded Appellant’s witnesses. A two-day trial was held on the issue of modification. The Court found for the Appellee and awarded him managing conservatorship of the child.

In her first point of error, Appellant maintains that the trial court erred in striking her answer and excluding her witnesses. A trial court is authorized to sanction a party under Tex.R.Civ.P. 215. It may consider everything that has occurred during the history of the litigation when determining how to sanction a party. Berry-Parks Rental Equip. Co. v. Sinsheimer, 842 S.W.2d 754, 757 (Tex.App.—Houston [1st Dist.] 1992, no writ). The choice of what sanctions to impose is left to the sound discretion of the Court. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). The Court only abuses its discretion if the sanctions are not “just.” Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.1992). Sanctions are “just” if they are not excessive and there is a direct relationship between the offensive conduct and the sanctions imposed. Id.

Tex.R.Civ.P. 215(2)(b)(5) provides:

If a party ... fails to comply with proper discovery requests or to obey an order to provide or permit discovery ... the court ... may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following:
(4) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(5) An order striking out pleadings or parts thereof.

Tex.R.Civ.P. 215(5) provides:

A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists.

Tex.R.Civ.P. 215(5) is mandatory, and if a party fails to respond to or supplement discovery, the undisclosed evidence cannot be admitted at trial unless the trial court finds that good cause existed for the [190]*190failure to respond. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992); Multi-Moto Corp. v. ITT Commercial Fin. Corp., 806 S.W.2d 560, 566 (Tex.App.—Dallas 1990, writ denied). Good cause must be shown on the record. National Union Fire Ins. Co. of Pittsburgh, PA., v. Wyar, 821 S.W.2d 291, 293 (Tex.App.—Houston [1st Dist.] 1991, no writ).

The Supreme Court held in Alvarado that: To relax the good cause standard in Rule 215(5) would impair its purpose.... The difficulty with the rule lies not so much in the requirement of strict adherence, but in the severity of the sanction it imposes for every breach. The consequences of the rule should not be harsher in any case than the vice the rule seeks to correct. The sole sanction should not be the exclusion of all evidence not properly identified in discovery; rather, as with other failures to comply with discovery, the trial court should have a range of sanctions available to it to enforce the rules without injustice. ... As written, however, Rule 215(5) prescribes a single sanction for failing to supplement discovery, and we are not free to disregard its plain language.

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Eason v. Eason
860 S.W.2d 187 (Court of Appeals of Texas, 1993)

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Bluebook (online)
860 S.W.2d 187, 1993 WL 282658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eason-v-eason-texapp-1993.