Woodruff v. Cook

721 S.W.2d 865, 1986 Tex. App. LEXIS 9439

• Court: Court of Appeals of Texas
• Decided: June 27, 1986
• Docket: 05-85-00516-CV
• Status: Published

Opinions

AKIN, Justice,

dissenting.

I cannot agree that Annie received adequate notice of the matters to be determined and the relief to be sought at the second hearing on the motion for contempt and sanctions held on February 7, 1985. Thus, I would hold that Annie was denied due process of law. Accordingly, I must dissent.

The Estate filed its Motion for Contempt and Sanctions on January 4, 1985, and a hearing on the motion was originally set for January 28th. On January 28th, approximately 30 minutes before the time set for the hearing, Annie’s attorney arrived at the offices of the Estate’s attorney with some documents in a garbage sack. The Estate’s attorney had already left for the hearing, but he was contacted at the courthouse. After a conversation between the attorneys, the Estate’s attorney attended the hearing, and the court imposed sanctions against Annie of $500 attorney’s fees and costs. Thereafter, the Estate, having apparently determined that the garbage sack of documents did not adequately comply with the required discovery, reset a hearing on the same Motion for Contempt and Sanctions.

The notice of this second hearing sent to Annie’s attorney stated that “[t]he purpose of this letter is to advise you that Plaintiff’s Motion for Contempt in the above referenced matter has been reset for Thursday, February 7, 1985, at 3:00 o’clock p.m.” The letter made no reference to the possibility that further rule 215 sanctions, other than the contempt specified in both the motion and notice, might be imposed. In an order dated February 12, 1985, based on the February 7th hearing, the Court did not hold Annie in contempt; rather, it imposed the further rule 215 sanction of striking Annie’s answer and dismissing her counterclaim. In my view, the trial judge abused his discretion by so acting since Annie was not on notice that additional sanctions would be imposed because the notice sent to Annie failed to apprise her that the court would reconsider on February 7th that portion of the Estate’s motion which sought sanctions, rather than only contempt.

I would hold that notice that a party may be held in contempt at a hearing is not reasonable notice that additional sanctions may be imposed under rule 215. This is especially so in a case where sanctions have already been imposed under a motion seeking both contempt and sanctions, and no new motion is filed seeking sanctions. Due process requirements of “reasonable notice” demand that, at a minimum, the notice be adequate to apprise the non-mov-ant of the purpose of the proceeding or of the relief sought by the movant. See Arndt v. Farris, 633 S.W.2d 497, 500 (Tex.1982) (notice of motion for sanctions sent to non-movant’s attorney and actual notice to non-movant of the hearing and of “the sanctions which could be imposed” constituted adequate notice); In the interest of BMN, 570 S.W.2d 493, 500 (Tex.Civ.App.—Texarkana 1978, no writ) (it is fundamental that a person must be given notice of the “potential deprival” sought in the hearing); Worman v. Thompson, 498 S.W.2d 507, 509 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ) (while appellant’s counsel received some notification, he believed he would receive further clarification as to “the purpose of the hearing,” and under the record the court found that there was not due and proper notice “of the matters to be heard at the hearing”); Campbell v. Richards, 233 S.W. 532, 534 (Tex.Civ.App.—Fort Worth 1921, no writ) (notice of the motion filed, the suit and court in which filed, and of the purpose of the proceeding was adequate notice). The notice here was not reasonable because it failed to inform the nonmovant of the purpose of the proceeding.

Thus, I must dissent.