United Business MacHine, Inc. v. Southwestern Bell Media, Inc.

817 S.W.2d 120, 1991 WL 176280
CourtCourt of Appeals of Texas
DecidedSeptember 12, 1991
Docket01-90-00527-CV
StatusPublished
Cited by16 cases

This text of 817 S.W.2d 120 (United Business MacHine, Inc. v. Southwestern Bell Media, Inc.) 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
United Business MacHine, Inc. v. Southwestern Bell Media, Inc., 817 S.W.2d 120, 1991 WL 176280 (Tex. Ct. App. 1991).

Opinions

OPINION

MIRABAL, Justice.

The question presented in this appeal is whether a trial court must hold an oral hearing, if a defendant requests one, before the trial court can properly grant a plaintiff’s motion for sanctions for defendant’s failure to obey a court order to provide discovery, under Tex.R.Civ.P. 215(2)(b)(5). Our answer is no.

United Business Machine, Inc. (“UBM”) appeals from a judgment entered against it as a sanction for its failure to obey a court order to provide discovery. We affirm.

UBM and Southwestern Bell Media (an agent of Southwestern Bell Yellow Pages) (“Southwestern”) contracted for Yellow Pages telephone directory advertising in the June 1985 and June 1986 Houston-area editions. The contract soured into litigation, and Southwestern sued UBM in May 1987, alleging that UBM never paid for the advertisements.

During 82 months of litigation, Southwestern sought the trial court’s intervention on five occasions in connection with its attempts to obtain discovery responses from UBM. On July 25, 1989, in response to Southwestern’s motion for sanctions, the trial court signed an order directing UBM to do the following by August 4, 1989: (1) file a written response to, and produce the documents requested by, Southwestern’s second set of requests for production, which had been served on UBM in September 1988; and (2) pay Southwestern $850 in attorneys’ fees.

Upon UBM’s failure to comply with the trial court’s order, Southwestern on September 15, 1989, filed a motion for judgment under rule 215. On November 6, 1989, the trial court signed an order directing UBM to produce the requested documents and file a written response to Southwestern’s second set of requests for production by December 18, 1989.

After UBM failed to comply with that order, Southwestern filed its second motion for judgment under rule 215 on February 8, 1990. Southwestern set its motion for oral hearing on March 5, 1990. According to Southwestern, the day after its motion for judgment (and its notice of oral hearing) were filed, the clerk of the court announced that the trial judge’s illness made written — not oral — submission necessary. Accordingly, Southwestern gave UBM notice on February 9 that the motion for judgment was set for written submission on February 19, 1990. Southwestern’s “Notice of Written Submission” does not reference the prior oral hearing setting; it reads in its entirety:

PLEASE TAKE NOTICE that Plaintiff SOUTHWESTERN BELL MEDIA, INC.’S Second Motion for Judgment Under Rule 215, Tex.R.Civ.P., filed February 8, 1990, will come on for written submission before the 164th Judicial District Court of Harris County, Texas, on Monday, February 19, 1990, at 9:00 a.m.

On February 14, 1990, UBM filed a request for an oral hearing on the motion for judgment.

On February 21, 1990, with no response to the motion for sanctions having been filed, the trial court granted the motion for sanctions and signed a judgment in favor of Southwestern for $90,124. See Tex.R.Civ.P. 215(2)(b)(5) (sanctions against party include “rendering a judgment by default against the disobedient party”). It was not until Friday, March 2, 1990, that UBM filed a “Response to Plaintiff’s Motion for Judgment.” UBM maintains that [122]*122its written response was intended for the oral hearing on March 5.

In two points of error, UBM asserts the trial court erred in granting the motion for judgment without an oral hearing, and the trial court abused its discretion in granting the sanction of default judgment without an oral hearing. UBM argues that it always contemplated that an oral hearing would occur on March 5, and that the “court erroneously proceeded to judgment in this cause without the oral hearing contemplated and set pursuant to local rules by the attorneys for both [parties].” UBM does not claim that it did not get notice of the submission date; rather, UBM claims that the confusion created by the two submission settings deprived it of due process.

UBM submits that this case requires this Court “to squarely decide the issue of whether a litigant who is sought to be sanctioned under Rule 215 is entitled to receive an oral hearing upon timely written request, where the adverse party has served it notices of both oral hearing and written submission.”

A trial court may impose sanctions on any party that fails to comply with proper discovery requests, or fails to obey an order to provide or permit discovery. Tex.R.Civ.P. 215(2)(b). The discovery sanctions imposed by a trial court are within that court’s discretion, and will be set aside only if the court clearly abused its discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 889, 840 (Tex.1986). The trial court’s discretion in this area is broad. Carr v. Harris County, 745 S.W.2d 531, 532 (Tex.App. — Houston [1st Dist.] 1988, no writ). To establish a clear abuse of discretion, it must be shown that the trial court’s action was arbitrary or unreasonable in light of all the circumstances of the case. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442-43 (Tex.1984).

Rule 215(2)(b) provides, “the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure [to comply with proper discovery requests or to obey an order] as are just ...” Tex.R.Civ.P. 215(2)(b) (emphasis added). In Palmer v. Cantrell, which involved the granting of a motion to dismiss based on discovery violations, this Court held that the “[written] submission of a motion satisfies the hearing requirements of rule 215.” Palmer v. Cantrell, 747 S.W.2d 39, 41 (Tex.App. — Houston [1st Dist.] 1988, no writ). We made this holding even though rule 215(2)(b), at the time of Palmer, as today, provided that a trial court could not impose sanctions under that part of the rule without “notice and a hearing.” Id. at 40.

However, in Palmer, no request for an oral hearing had been made, and no response had been filed to the motion for sanctions. The question before us today is a little different: was UBM entitled to an oral hearing since it timely requested one?

In Gulf Coast Investment Gory. v. NASA 1 Business Center, 754 S.W.2d 152, 153 (Tex.1988), the supreme court held that the trial court abused its discretion in refusing to hold an oral hearing on a motion to reinstate a dismissed case pursuant to Tex.R.Civ.P. 165a. Rule 165a requires that the judge “shall set a hearing on the motion as soon as practicable,” and that the court “shall notify all parties or their attorneys of record of the date, time and place of the hearing.” (Emphasis added.) The supreme court specifically noted in its opinion:

Not every hearing called for under every rule of civil procedure, however, necessarily requires an oral hearing. Rule 7, Rules of Judicial Administration, provides, in part, as follows:
A district or statutory county court judge shall:
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United Business MacHine, Inc. v. Southwestern Bell Media, Inc.
817 S.W.2d 120 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
817 S.W.2d 120, 1991 WL 176280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-business-machine-inc-v-southwestern-bell-media-inc-texapp-1991.