ON MOTION FOR REHEARING
Appellant has filed a motion for rehearing of our opinion dismissing his appeal. He asserts two points of error. We deny appellant's motion for rehearing. Prior to addressing appellant's points of error, we first address several matters raised in the "factual background" section of appellant's motion for rehearing.
Appellant asserts that when appellees initially served their discovery request on him, he filed a motion to quash appellees' requested discovery. Appellant further asserts that on July 19, 1989, the trial court granted appellant's motion to quash by ruling that appellant was to serve his answers on the latter of the following dates: "(1) September 5, 1989, or (2) ten days after his failure to perfect an appeal or his appeal is denied." Appellant argues that since he perfected his appeal, and the appeal was not denied, no answers were due under the trial court's July 19, 1989 order.
Appellant mischaracterizes the trial court's July 19, 1989 ruling. The trial court's order states, "Unless Defendanthas prior filed a supersedeas bond which is sufficient underthe law, Defendant shall serve his responses to the Deposition Questions on the latter of the following two dates: (1) September 5, 1989 or (2) ten (10) days after his failure to perfect an appeal or his appeal is denied" (emphasis added). Since appellant did not file a supersedeas bond, then the trial court's July 19, 1989 order required him to respond to the discovery.
Appellant next asserts that when appellees filed their motion to compel discovery on November 2, 1989, appellant filed a response, and demanded an oral hearing by letter to the district clerk. Appellant's response asserted that he was under no obligation to respond to the discovery for the reasons set out above. On December 14, 1989, the trial court rejected appellant's contention, and, without an oral hearing, signed an order compelling appellant to respond to the discovery by December 31, 1989. Appellant has attached to his motion for rehearing an uncertified copy of the Local Rules of the Civil Trial Division, Harris County District Courts. See McRaev. Guinn Flying Serv., 778 S.W.2d 189, 191 (Tex.App. — Houston [1st Dist.] 1989, no writ) (this Court may take judicial notice of a certified copy of the local rules). Appellant asserts the trial court violated the local rules when it granted appellees' motion to compel without an oral hearing.
Since appellant failed to attach a certified copy of the local rules, we may not judicially notice them. Id. Assuming we could judicially notice them, appellant's contention is without merit. The local rules required appellant to request an oral hearing on appellees' motion to compel in his response to appellees' motion to compel. Rule 3.3.4, Rules of the Civil Trial Division, Harris County District Courts. His request for an oral hearing was in a letter to the district clerk. Thus, appellant's request for an oral hearing did not comply with rule 3.3.4, and the trial court did not violate its local rules by failing to hold an oral hearing on appellees' motion to compel.
To the extent appellant argues his due process rights were violated by the trial court's failure to hold an oral hearing on appellees' motion to compel, this Court has held that compliance with local rules authorizing a trial court to rule on a motion upon submission without an oral hearing does not violate due process. Palmer v. Cantrell, 747 S.W.2d 39, 40-41 (Tex.App. — Houston [1st Dist.] 1988, no writ).
Appellant asserts two points of error in his motion for rehearing. *Page 253 Appellant's first point of error asserts that this Court erred in finding no abuse of discretion by the trial court, and that the trial court abused its discretion by failing and refusing to state the specific nature of the deficiencies in appellant's responses and what additional information was required.
Appellant asserts the trial court abused its discretion when on February 2, 1990, it ordered appellant "to supplement his answers, without giving him any guidance whatsoever, then holding him in contempt and assessing sanctions against him for not being able to read the judge's mind as to just what he required." Appellant did not object to the alleged lack of specificity of appellees' questions or to the alleged lack of specificity of the trial court's orders compelling discovery until he filed his response to appellees' March 20, 1990, second motion to enforce the trial court's discovery orders — approximately nine months after appellees initially requested the discovery. Appellant waived any objections he may have had to the alleged lack of specificity of the questions, and to the alleged lack of specificity of the trial court's orders. TEX.R.CIV.P. 208(3); see also TEX.R.CIV.P. 168(6).
On this point, we quote from appellees' reply to appellant's motion for rehearing:
Appellant's arguments about the specificity of the trial court's orders are not timely and are without merit. The specificity arguments are not timely because they were not raised until after two orders compelling discovery and one order of sanctions and contempt had already been entered against Appellant. Appellant did not object to the discovery questions as being vague or lacking specificity when they were served on him (7/11/89), nor did he make such objections when Appellees moved to compel the discovery (11/3/89), nor when the trial court ordered him to respond to the discovery (12/14/89), nor when Appellees moved for sanctions and a finding of contempt (1/5/90), nor when Appellant moved for additional time in which to respond (1/16/90), nor when Appellant first responded to the discovery (1/30/90), nor at the hearing on Plaintiff's Motion for Sanctions and a Finding of Contempt which was postponed at Appellant's request and which Appellant nevertheless failed to attend (2/1/90), nor when Appellant amended his responses to the discovery (2/2/90), nor when the trial court sanctioned him and found him in contempt (2/2/90), nor when Appellees' counsel wrote Appellant's counsel requesting that he comply with the order and giving specific examples of his failure to comply (2/5/90).
It was only after Appellees moved for a second order of contempt that Appellant suddenly concocted the excuse that the questions asked are not specific enough for him to understand . . .
The case of Phillips v. Vinson Supply Co., 581 S.W.2d 789 (Tex.Civ.App. — Houston [14th Dist.] 1979, no writ), cited by appellant, is distinguishable. InPhillips, the court held that the trial court abused its discretion and denied plaintiff due process in dismissing plaintiff's case with prejudice where plaintiff's answers to interrogatories were filed within the time limits in the trial court's discovery order, and where plaintiff was without notice that the answers were defective, and was not allowed an opportunity to correct the defects in the answers. 581 S.W.2d at 792. Here, appellant was on notice that his answers were defective, and he had several opportunities to correct the defects in his answers.
Appellant's argument that the trial court abused its discretion in failing to guide him on how to respond to the discovery is without merit.
Appellant also argues that the trial court could not enforce its orders by contempt because of the lack of specificity of its orders. However, this Court dismissed appellant's appeal because of appellant's noncompliance with the trial court's discovery orders. In dismissing appellant's appeal, it was not necessary for this Court to decide whether the trial court could enforce its orders by contempt. It was only necessary for this Court to decide whether appellant complied with the trial court's discovery *Page 254 orders, and whether such noncompliance was willful and in bad faith. McRae, 778 S.W.2d at 191.
Therefore, the cases appellant cites are inapplicable.See Ex parte Lee, 704 S.W.2d 15 (Tex. 1986); Exparte Reese, 701 S.W.2d 840 (Tex. 1986). InReese and Lee, the trial courts sought to enforce their orders by civil contempt, and ordered the offending parties confined. At issue in Reese andLee was the validity of the confinement. No such issue is presented here because the trial court never sought to enforce its discovery orders by civil contempt. To the extent appellant argues that the trial court abused its discretion in finding that his answers to the requested discovery were incomplete and made in bad faith because of the lack of specificity of the discovery questions and the trial court's prior orders compelling appellant to respond to the discovery, appellant waived this objection for the reasons set out above.
In summary, appellant has failed to demonstrate that the trial court abused its discretion in finding that appellant's initial answers to appellees' discovery request were inadequate and made in bad faith as set out in the trial court's February 2, 1990 order, and that the trial court abused its discretion in continuing its February 2, 1990 order in effect, as set out in its March 26, 1990 order, after appellant filed his supplemental responses to appellees' discovery request.
Appellant's first point of error is overruled.
Appellant's second point of error asserts that this Court erred in imposing the extreme sanction of dismissal of his appeal because, prior to the dismissal of his appeal, appellees had obtained from appellant the information they earlier requested at appellant's deposition in Massachusetts, where appellant now resides. In their reply to appellant's motion for rehearing, appellees assert, with supporting documentation, that appellant has been as evasive in responding to discovery in Massachusetts as he has been in Texas.
It is unnecessary for this Court to decide whether appellees obtained from appellant at his Massachusetts deposition all the information they previously requested, because eventual compliance with a discovery request does not preclude the imposition of sanctions. Drozd Corp. v. Capitol Glass Mirror Co., 741 S.W.2d 221, 223 (Tex.App. — Austin 1987, no writ).
Appellant's second point of error is overruled.
The motion for rehearing is denied.
WARREN, J., having died on August 13, 1990, not participating.