DROZD CORPORATION, Appellant, v. CAPITOL GLASS & MIRROR COMPANY, Appellee.
No. 3-86-147-CV.
Court of Appeals of Texas, Austin.
Nov. 25, 1987.
741 S.W.2d 221
With regard to Lemons’ negligence claims alleging design and marketing defects, in a negligence cause of action against a manufacturer for injuries suffered as a result of the manufacturer‘s product the plaintiff must establish that: 1) the manufacturer owed a legal duty to the plaintiff; 2) the manufacturer breached that duty; 3) the plaintiff suffered an injury as a result of the breach; and 4) the breach of duty was a proximate cause of the injury. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984). Every manufacturer must provide a product that is reasonably safe for its foreseeable use, and has a duty to warn of dangers in the use of its product of which it knows or should know. Rawlings Sporting Goods Co., Inc. v. Daniels, 619 S.W.2d 435, 439 (Tex.Civ.App.—Waco 1981, writ ref‘d n.r.e.).
The record before us reflects that EMW alleged and produced evidence in support of its contentions: that the pizza dough rolling machine was not defective or unsafe in any respect when it left its control; and that EMW could not have reasonably foreseen that the machine would be operated without the six safety bars intact. Accordingly, we find EMW presented a meritorious defense to the cause of action for breach of express warranty because it negated the requirement of
In conclusion, we hold that because EMW presented prima facie proof to support its defense to the underlying lawsuit, the trial court erred in denying/dismissing the case. EMW‘s second point of error is sustained.
The trial court‘s judgment is reversed and the cause remanded for a trial on the merits of EMW‘s petition for bill of review.
KELTNER, J., recused.
Gary Risley, Moore & Palmer, Bryan, for appellant.
No appellee‘s brief filed.
Before SHANNON, C.J., and BRADY and ABOUSSIE, JJ.
SHANNON, Chief Justice.
Appellant, Drozd Corporation, appeals from a default judgment rendered in favor of appellee,1 Capitol Glass & Mirror Company, by the district court of Travis County. We will affirm the judgment.
Appellee filed suit against appellant to recover amounts due for goods and services rendered, pursuant to
By four points of error, appellant argues that the district court erred and abused its discretion in striking appellant‘s answer, in entering a default judgment and in overruling its motion for new trial. Initially, we note that this cause is not an ordinary default judgment case; it is a case pursuant to
[a]n order striking out pleadings or parts thereof, ... or rendering a judgment by default against the disobedient party....
If the order is within the trial court‘s authority, as is the one here, it will not be overturned unless there is a clear abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985); cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court‘s action. It is a question of whether the trial court acted without reference to any guiding rules and principals, that is, whether the act was arbitrary or unreasonable. Id., at 241-242; see generally, Kilgarlin & Jackson, Sanctions for Discovery Abuse under New Rule 215, 15 St. Mary‘s L.J. 767 (1984). In the instant appeal the district court rendered its order after a hearing on the motion for sanctions and reconsidered the order on motion for new trial. Accord
As stated previously, appellant did not appear at the hearing on the motion for sanctions. Although the district court‘s order recites that the court conducted a hearing on the motion for new trial, appellant has not filed a statement of facts from that hearing. Appellant did, however, file an affidavit in support of its motion. In the affidavit appellant‘s attorney states that due to an oversight, the interrogatories’ due date was not entered on the docket control calendar; that after receiving the motion for sanctions, he assured appellee‘s counsel that the interrogatories would be answered; that he, appellant‘s attorney, understood that there would be no hearing on the motion for sanctions “upon receipt by [appellee] of the Answers ...“; that appellant‘s president did not sign the answers until August 29; and that the answers “were promptly forwarded to the Court following [appellant‘s] signature on September 2, 1986.”
The district court‘s order of September 4 indicates that judgment was rendered on September 2 and recites that appellant “without good cause failed to comply with proper discovery requests and specifically to file and serve answers to [Appellee‘s] Request for Answers to Interrogatories....” Under the record, including appellant‘s affidavit, this Court concludes that the district court was not arbitrary or unreasonable in striking appellant‘s answer and granting the default judgment. It was within the district court‘s discretion to determine whether appellant‘s failure to answer the interrogatories was due to intervening circumstances or to conscious disregard of the rules; whether subsequent to the due date, there was a good faith effort to comply; and whether appellant‘s failure to appear on September 2 was reasonable in reliance on the assumption that there would not be a hearing if appellee received the answers. Even if this assumption were correct, appellant did not forward the answers to the district court until September 2, the day of the hearing and several days after such were signed. The record does not show that appellant informed either appellee or the district court that the answers were prepared and had been mailed prior to the hearing. See Illinois Emp. Ins. Co. of Wausau v. Lewis, 582 S.W.2d 242 (Tex.Civ.App.), writ ref‘d n.r.e., 590 S.W.2d 119 (Tex.1979). Furthermore, in the absence of a statement of facts, this Court must presume that any evidence adduced at the hearing on the motion for new trial supports the trial court‘s order. Guthrie v. National Homes Corp., 394 S.W.2d 494 (Tex.1965). Accordingly, this Court concludes that the district court did not abuse its discretion.
Nevertheless, appellant argues that although some sanction was appropriate, the one imposed was punitive and, therefore, too harsh. Appellant relies on Phillips v. Vinson Supply Co., 581 S.W.2d 789 (Tex.Civ.App.1979, no writ), in which the court stated that the purpose of discovery sanctions is not to punish a party, but to secure compliance with the discovery process. Id., at 792. In Southern Pacific Transportation Co. v. Evans, 590 S.W.2d 515 (Tex.Civ.App.1979, writ ref‘d n.r.e.) cert. denied 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980), however, the court recognized the deterrence of violations of the rules by other litigants as an additional purpose of discovery sanctions. Under this principle, eventual compliance with a discovery request does not preclude the imposition of sanctions. Id., at 518. The Supreme Court has, in fact, recently clarified the purpose of sanctions as not only to assure the parties’ compliance with discovery procedures but also to deter other litigants’ abuse of the process and to punish parties that violate the discovery rules. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839 (Tex.1986); Downer, 701 S.W.2d at 242; see also Kil
Although the sanction imposed may be harsh, we cannot conclude, on the record before the Court, that the district court abused its discretion. Appellee was not required either to seek an order compelling discovery or to invoke a lesser sanction before requesting the trial court to strike appellant‘s answer and enter a default judgment.
We overrule appellant‘s points of error. The judgment of the trial court is affirmed.
BRADY, Justice, dissenting.
I respectfully dissent.
The sanction imposed below—striking appellant‘s answer and rendering a default judgment—is clearly authorized by
In evaluating whether the trial court abused its discretion in this matter, we must, as the majority has already pointed out, determine whether the actions of the trial court were “... arbitrary or unreasonable.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
In reviewing the reasonableness of the trial court‘s decision we will first review the chronology of events which led to the imposition of the sanctions. Appellant failed to answer the interrogatories propounded by appellee within the thirty days specified. Appellee moved for sanctions, based on this failure to answer, seven days after the answers were due. Appellant‘s counsel, Risley, received notice of appellee‘s Motion for Sanctions and contacted appellee‘s attorney to explain that the due date for answers to the interrogatories had inadvertently been omitted from Risley‘s docket calendar. According to Risley‘s affidavit, attached to his Motion for New Trial, Risley assured appellee‘s counsel the answers were forthcoming and it was Risley‘s understanding that upon receipt of the answers, the hearing would not be held. Appellant signed the verification cover sheet to the interrogatories on August 29, 1986 and Risley mailed the answers on September 2, 1986. The answers were filed with the trial court on September 4, 1986. A total of twenty-nine days had elapsed from the day the answers were originally due to the day they were received by the court.
In Pena v. Williams, 547 S.W.2d 671 (Tex.Civ.App.1977, no writ), appellees brought suit to cancel a written lease agreement. Appellant failed to answer interrogatories filed by appellees. The appellant‘s pleadings were struck shortly before the case was set for trial, but only after two separate hearings were held on appellees’ motion to compel appellant to answer and appellant was given an opportunity after each hearing to complete his answers to the interrogatories. Id., at 673. In Pena the case went to trial and appellant still had the opportunity to cross-examine appellees’ witness and call his own witnesses. Despite Pena‘s repeated failure to comply with discovery, Pena‘s cause was not completely terminated. In the case at bar, this Court would extinguish Drozd‘s cause because of a single failure to answer interrogatories.
George Joseph OLIVER, Appellant, v. Delores Geraldine OLIVER, Appellee.
No. 2-87-014-CV.
Court of Appeals of Texas, Fort Worth.
Dec. 3, 1987.