Phennel v. Roach , 1990 Tex. App. LEXIS 1467 ( 1990 )

OPINION ON MOTION FOR REHEARING

BURNETT, Justice.

The February 21, 1990 opinion of this Court is withdrawn, and the following is now the opinion of this Court. The motion for rehearing of appellants, William Phen-nel and Twin City Fire Insurance Company, is overruled.

William Ray Phennel and Twin City Fire Insurance Company (Twin City) appeal a take nothing judgment entered by the trial court as sanctions, for Phennel’s failure to timely respond to discovery requests from Robbie J. Roach. In three points of error, appellants contend that: (1) the trial court abused its discretion by striking Phennel’s pleadings and ordering a take nothing judgment; (2) the trial court erred in entering a take nothing judgment against Twin City; and (3) the trial court erred in entering a take nothing judgment because there was no evidence of any misconduct by Phennel. We disagree and affirm the trial court’s judgment.

Phennel filed a suit on August 25, 1987, for personal injuries and damages sustained in an automobile accident with Roach. Twin City, which paid workers’ compensation benefits to Phennel, intervened and claimed a right of subrogation to Phennel’s cause of action against Roach. Roach served a set of interrogatories and a request for production on Phennel’s prior counsel, on May 12, 1988. Prior counsel subsequently withdrew from representing Phennel on September 14, 1988. At the time of said withdrawal, Phennel had not responded to the discovery requests. In November 1988, Roach served a set of interrogatories and a request for production on Phennel identical to the discovery requests previously served on prior counsel. On January 27,1989, Phennel obtained new counsel.

On March 28, 1989, Roach filed a motion for sanctions alleging that his discovery requests had not been answered. Phennel served responses to the discovery requests on Roach the following day. At the sanctions hearing, Roach’s counsel stated that Phennel’s responses to the interrogatories were not verified and only half-answered. Roach also stated that Phennel’s responses to the request for production were “thin.” The trial court, in granting Roach’s motion for sanctions, struck Phennel’s pleadings and entered a judgment that Phennel and Twin City take nothing from Roach.

In their first point of error, appellants contend that the trial court abused its discretion by striking pleadings and entering a take nothing judgment as a result of Phen-nel’s failure to timely answer Roach’s discovery requests. To establish an abuse of discretion by the trial court, it must be shown the trial court “acted without reference to any guiding rules and principles.” 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). Downer also states the test for an abuse of discretion as whether the trial court’s act was “arbitrary or unreasonable.” Id. at 242.

A trial court has broad discretion in imposing sanctions on a party abusing the discovery process. Gonzales v. Conoco, Inc., 722 S.W.2d 247, 249 (Tex.App.—San Antonio 1986, no writ). Texas Rules of Civil Procedure 215(2)(b)(5) provides that if a party fails to comply with proper discovery requests, the trial court may make such orders in regard to the failure as are just, including an order striking out pleadings. Tex.R.Civ.P. 215(2)(b)(5). The trial court abuses its discretion if the sanction imposed does not further one of the purposes that the discovery sanctions were intended to further. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). The purposes of discovery sanctions are to:

(1) secure the parties’ compliance with the rules of discovery;

(2) deter other litigants from violating the discovery rules; and

(3) punish parties that violate the rules of discovery.

Id. (citations omitted).

Appellants contend that the sanctions imposed were not “just” because appellant was without representation by counsel for over four months. We cannot, however, make any allowance for the fact that appellant was without counsel in reviewing the trial court’s imposition of the sanctions. We must treat each case as if the acts of a party occurred with benefit of counsel. Stein v. Lewisville Ind. School Dist., 481 S.W.2d 436, 439 (Tex.Civ.App.-Fort Worth 1972, writ ref’d n.r.e.), cert. denied, 414 U.S. 948, 94 S.Ct. 272, 38 L.Ed.2d 203 (1973); Bailey v. Rogers, 631 S.W.2d 784, 786-87 (Tex.App.—Austin 1982, no writ).

In any event, Phennel failed to respond to Roach’s discovery requests for over ten months. Of these ten months, Phennel was represented by counsel for approximately six months.

We hold that the trial court did not abuse its discretion in striking Phennel’s pleadings and entering a take nothing judgment. The trial court’s action, while serving as a deterrent to other litigants from abusing discovery rules, did not punish Phennel inappropriately. We overrule appellants’ first point of error.

In their second point of error, appellants contend that the trial court erred in entering a take nothing judgment against Twin City. Appellants assert that Twin City’s cause of action should not be dismissed merely because the trial court dismissed Phennel’s cause of action.

Twin City intervened in Phennel’s action against Roach and claimed a right of subrogation to Phennel’s cause of action to the extent of the workers’ compensation benefits Twin City had advanced Phennel. A compensation carrier’s right to subrogation is governed by Texas Civil Statutes Annotated article 8307, section 6a, which provides:

If compensation be claimed under this law by the injured employee ... then the [compensation carrier] shall be subrogat-ed to the rights of the injured employee, and may enforce in the name of the injured employee ... the liability of the [third party].

Tex.Civ.Stat.Ann. art. 8307, § 6a(a) (Vernon Supp.1989).

A claim to recover compensation is a derivative cause of action under article 8307, section 6a, “depending upon a recovery by the injured employee of damages growing out of personal injuries sustained as a result of the act or omission of a third party.” Yeary v. Hinojosa, 307 S.W.2d 325, 332 (Tex.Civ.App.—Houston 1957, writ ref’d n.r.e.); City of Houston v. Twin City Fire Ins. Co., 578 S.W.2d 806, 808 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). There is but one cause of action against the third party tortfeasor—that of the employee, who owns it burdened by the right of the insurance carrier to recoup itself for compensation paid. Fort Worth Lloyds v. Haygood, 151 Tex. 149, 154, 246 S.W.2d 865, 868 (1952); Evans v. Venglar, 429 S.W.2d 673, 675 (Tex.Civ.App.—Corpus Christi 1968, no writ). Thus, because Phen-nel’s pleadings were struck, resulting in a take nothing judgment, Twin City’s cause of action against Roach must also be defeated. See City of Houston, 578 S.W.2d at 808; Evans, 429 S.W.2d at 675. We overrule appellants’ second point of error.

In their third point, appellants contend that the trial court erred in imposing sanctions because there was no proof of any misconduct by Phennel. The record of the sanctions hearing clearly reflects that it was undisputed that Phennel failed to respond to Roach’s discovery requests for over ten months.

Also, Phennel offered no objections to the discovery requests. The burden at the hearing rests on the party resisting discovery to establish its privilege, immunity or other objections to the discovery request. See McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989). Thus, Phennel did not respond for over ten months nor did he object to the discovery request. We overrule appellants’ third point of error.

We affirm the trial court’s judgment.