Court of Appeals of Texas, Houston (1st Dist.).

Louis GUTIERREZ, Appellant,

v.

YORK PLAZA HOSPITAL, Appellee.

No. 01-89-01096-CV.

|

July 19, 1990.

Before COHEN, DUNN and MIRABAL, JJ.

OPINION

COHEN, Justice.

*1 After a non-jury trial, the court rendered judgment that appellant, Louis Gutierrez, take nothing in his wrongful termination suit against appellee, York Plaza Hospital.

In four points of error, appellant complains the trial court erred in its rulings on pre-trial discovery matters, in admitting the testimony of undisclosed witnesses, and in rendering judgment for appellee because the judgment was contrary to the overwhelming weight and preponderance of the evidence.

In his first point of error, appellant contends the trial court erred in overruling his motion to compel answers to two interrogatories.

Appellant’s interrogatory number 3 read:

Please list the name and address of all persons who have been terminated by the Defendant in the last two years next proceeding [sic] Plaintiff’s termination, indicate whether or not such individuals instituted proceedings to collect Workers’ Compensation benefits at any time while employed by the Defendant.

Appellee objected that the interrogatory was not relevant and was not reasonably calculated to lead to the discovery of admissible evidence. Appellant contends he needed the answer to support his claim for punitive damages, by showing appellee’s habit of terminating employees who file worker’s compensation claims, in violation of Tex. Rev. Civ. Stat. Ann. art. 8307c (Vernon Supp. 1990).

We must determine whether the trial court abused its discretion in sustaining the objection and denying discovery. Johnson v. Houston Sports Ass’n, 615 S.W.2d 781, 785 (Tex. Civ. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) We find no abuse of discretion. Although appellant may have been entitled to the names of fired employees who sought worker’s compensation, he was not, as a matter of law, plainly entitled to the names of all fired employees within the last two years — including those who did not seek benefits. Interrogatory 3 requested this information. Appellant does not contend, and has not demonstrated, that the names of fired employees who did not file claims was discoverable, as a matter of law. Moreover, appellant’s sole claim of harm is that the answer was needed to prove a case for punitive damages. He does not claim that the court’s ruling prevented him from proving either liability or actual damages. To win punitive damages, appellant first had to recover actual damages. Fort Worth Elev. Co. v. Russell, 123 Tex. 128, 150, 70 S.W.2d 397, 409 (1934); Houston N.W. Med. Center Survivor, Inc., v. King, 788 S.W.2d 179, 180-81 (Tex. App.–Houston [1st Dist.] 1990, no writ). Appellant failed to do so. Thus, the court’s refusal to order discovery of evidence supporting the punitive damage claim could not have caused the rendition of an improper judgment. Tex. R. App. P. 81(b)(1).

Appellant’s interrogatory number 4 was:

As to each person known by the Defendant or its attorney to have knowledge of any discoverable matters relating to any of the Defendant’s defenses to Plaintiff’s allegations please state the following:

*2 1. Name(s);

2. Business address;

3. Substance of each person’s knowledge.

Appellee objected this interrogatory was “too broad, unclear and undefined.” In Lunsmann v. Spector, 761 S.W.2d 112, 113 (Tex. App.–San Antonio 1988, orig. proceeding), the plaintiff sent a similar interrogatory. It asked:

Please identify by name, complete address, and telephone number, each and every person known to you, your attorney, agents, employees, or investigators who has or claims to have any knowledge of any fact or record relating or pertaining to this cause of action or any factual disputes which may arise in connection with these proceedings.

Id. Appellee filed a general denial; no affirmative defenses or other specific defensive allegations are set out in appellee’s answer. The interrogatory here asks for persons with knowledge of appellee’s “defenses,” instead of knowledge relating to the “cause of action or any factual disputes which may arise in connection with these proceedings.” In the face of a mere general denial, knowledge pertaining to “defenses” is as broad as knowledge “relating to a course of action or any factual dispute which may arise in connection with these proceedings.” We find no abuse of discretion. See Johnson, 615 S.W.2d at 785. Moreover, appellant cites no decisions reversing judgments because of similar errors in discovery rulings. While it may be impossible to prove that the erroneous denial of discovery caused the rendition of an improper judgment, appellant has not directed us to any authority relieving him of the burden to do so. See Tex. R. App. P. 81(b)(1).

Point of error one is overruled.

Appellant asserts in his second point of error that the trial court erred in sustaining objections to his second set of interrogatories. The second set of interrogatories was identical to interrogatories 3 and 4 of the first set of interrogatories, quoted above. Specifically, appellant contends that appellee waived its objections to the second set of interrogatories by not objecting until 41 days after it was served.

Texas Rule of Civil Procedure 168(6) provides:

Objections served after the date on which answers are to be served are waived unless an extension of time has been obtained by agreement or order of the court or good cause is shown for the failure to object within such period.

Appellee did not obtain an extension of time to object, and the trial court did not find good cause for failure to make a timely objection. Appellee argued at the hearing that objections were unnecessary because the court had already ruled that the identical questions were overbroad in denying appellant’s earlier motion to compel. Given these unusual circumstances, we hold that the trial court did not err because appellee had no duty to object repeatedly to the same interrogatories after it had already obtained a favorable ruling.

*3 Point of error two is overruled.

In its third point of error, appellant contends the trial court erred in admitting the testimony of undisclosed witnesses over appellant’s objections. Specifically, appellant complains of the admission of testimony of Janna Harvey, the hospital’s personnel manager at the time of the incident, and Kenneth Keyes, the head of the hospital’s maintenance department and appellant’s supervisor at the time of the incident.

This is not a case where appellee answered interrogatories incompletely. The trial court did not require appellee to answer interrogatories asking the identity of these two witnesses. Because no answer was required, no supplementation of an answer was required. Appellee had no duty to list these witnesses. Moreover, the joint pre-trial agreed order stated that the parties would exchange witness lists before trial, but it did not provide a date. Appellee presented its list on trial day; appellant did not ask for a continuance or claim surprise. There is no evidence that appellant was surprised. Keyes was named in appellant’s pleadings as the one who threatened to fire appellant if he filed a claim. Keyes was listed by appellee as a person who participated in the decision to fire appellant. Appellant’s case rested entirely on Keyes’ statements to him. Keyes’ name (and Harvey’s ) appeared frequently in appellant’s employment file, which was furnished to him long before trial. If good cause to admit Keyes’ testimony was necessary, it was shown. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395, n.2, 396 (Tex. 1989).

Regarding Harvey, appellant does not contend that her testimony harmed him. Thus, no reversible error is shown. Tex. R. App. P. 81(b)(1).

Point of error three is overruled.

In his fourth point of error, appellant contends the judgment was contrary to the overwhelming weight and preponderance of the evidence.

Both appellant and appellee filed proposed findings of fact and conclusions of law. The trial court did not sign any findings or conclusions. In its judgment, the court stated: (1) that appellant did not prove he was discharged because he filed a worker’s compensation claim or hired a lawyer in connection with such a claim, and (2) that, by pre-trial agreement, appellee gave appellant a witness list and that good cause existed for appellee not filing a response to appellant’s supplemental interrogatories.

Keyes testified that, after appellant was hurt, he hired a replacement so that work would continue. Contradicting appellant’s testimony, Keyes testified he never told appellant that if he filed a worker’s compensation claim or hired a lawyer, the hospital would fire him. The trial court’s judgment is not against the preponderance of the evidence.

We overrule appellant’s fourth point of error.

We affirm the judgment.

*4 Do not publish. Tex. R. App. P. 90.