law-failure-to-disclose-evidence, mandatory exclusion of evidence not produced in discovery | admission and
exclusion of evidence on other grounds | automatic exclusion effect of untimely disclosure of witnesses
FAILURE TO DISCLOSE WITNESSES, EVIDENCE, IN DISCOVERY -
AUTOMATIC EXCLUSION
Texas Rule of Civil Procedure rule 194.2(d) provides that a party may request disclosure of "the amount and
any method of calculating economic damages." Tex. R. Civ. P. 194.2(d). Comment 2 to the rule provides that
subsection (d) is "intended to require disclosure of a party's basic assertions, whether in prosecution of claims
or in defense." Id. cmt. 2. As an example of the required disclosure, comment 2 notes, that, in a claim for
damages suffered in a car accident, the plaintiff would be required to state how loss of past earnings and future
earning capacity was calculated. Id.
Safeco Surety v. J.P. Southwest Concrete, Inc. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Alcala)
(effect of failure to disclose evidence) (effect of failure to disclose evidence, failure to plead properly, trial by
consent, release as affirmative defense, lost profit damages)
Rule 193.6(a) provides, "A party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not timely disclosed." Tex. R. Civ. P.
193.6. The purpose behind this rule is to prevent trial by ambush. Harris County v. Inter Nos, Ltd., 199 S.W.3d
363, 367 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d
805, 807 (Tex. 1993)). "Absent a showing of good cause, lack of unfair surprise, or lack of unfair prejudice, rule
193.6 mandates exclusion of the undisclosed material or information." Id. "The burden of establishing good
cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence . . . ."
Tex. R. Civ. P. 193.6(b); Harris County, 199 S.W.3d at 367.
Admission of Documents Not Produced in Discovery
Cano asserts that the trial court erred by admitting five documents offered by Nino that were attached as an
exhibit to Nino's first amended answer and counterclaim but were not produced in response to Cano's discovery
requests. Cano further asserts that the trial court erred by allowing Nino to testify about these five documents.
A party who prevails on a breach of contract claim is entitled to recover attorneys' fees for prosecution of the
claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). To recover attorneys' fees, a claimant first
must present the claim to the opposing party or his agent. Id. § 38.002(2) (Vernon 2008). The statute is to be
generously construed to promote its underlying purpose. Id. § 38.005 (Vernon 2008); Chudleigh, 2002 WL
576092, at *5.
Cano v. Nino's Paint and Body Shop, (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)
(admission of business records, business records affidavit,
failure to disclose documentary evidence in discovery, attorneys fees on breach of contract, presentment of
claim as condition precedent)
We review a trial court's evidentiary rulings for abuse of discretion. Horizon/CMS Healthcare Corp. v. Auld, 34
S.W.3d 887, 906 (Tex. 2000). A trial court abuses its discretion when it rules without regard for any guiding
rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We must
uphold a trial court's evidentiary ruling if there is any legitimate basis for the ruling. Id.
Generally, a party who fails to make, amend, or supplement a discovery response in a timely manner may not
offer at trial information that was not timely disclosed, or offer the testimony of a non-party witness who was not
timely identified. Tex. R. Civ. P. 193.6(a). The rule is mandatory and exclusion of the evidence is automatic
absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice." Lopez v. La
Madeleine, 200 S.W.3d 854, 860 (Tex. App.- Dallas 2006, no pet.) (citing Alvarado v. Farah Mfg. Co., 830 S.W.
2d 911, 914 (Tex. 1992)). The burden of establishing good cause, lack of unfair surprise, or lack of unfair
prejudice is on the offering party, and such a finding must be supported by the record. See id.; Tex. R. Civ. P.
193.6(b). We conclude that lack of unfair surprise on this record supports the trial court's decision.
The circumstances here parallel Williams v. County of Dallas, 194 S.W.3d 29 (Tex. App.- Dallas 2006, pet.
denied). The defendant in Williams was sued for collection of delinquent ad valorem taxes for 1991 through
1999. Id. at 31. The plaintiff attached to its petition a tax statement detailing the amounts due from 1991
through 1999 and stating that the suit sought Aall delinquent taxes owed on th[e] property, whether or not
itemized herein for all years." Id. at 33. The plaintiff offered at trial a tax statement detailing the amounts due
from 1991 through 2003. Id. at 32. The plaintiff never disclosed this exhibit in response to the defendant's
discovery requests. Id. at 33.
The defendant objected to the offer of the tax statement under Rule 193.6(a). Id. at 32. The trial court
overruled her objection because a tax statement for the years 1991 through 1999 was attached to the petition,
and the pleadings explicitly covered any taxes that became delinquent after the lawsuit was filed. Id. at 32-33.
The court of appeals affirmed; it agreed that the pleadings and attachment provided notice that the collectors
sought recovery of all unpaid taxes, and concluded that the trial court had a legitimate basis for admission of
the tax statement covering the years from 1991-2003. Id. at 33.
Here, as in Williams, Cano complains that Rule 193.6(a) foreclosed admission of Defendant's Exhibits 2, 25, 26,
27, and 28 because Nino did not produce them in response to Cano's discovery requests. It is undisputed that
Nino failed to produce the exhibits in response to Cano's requests. It also is undisputed that the exhibits were
attached to Nino's first amended answer and counterclaim filed with the court and sent to Cano on November
22, 2006 _ 10 months before trial.
Under the circumstances of this case, we conclude that lack of unfair surprise provided a permissible basis to
admit Defendant's Exhibits 2, 25, 26, 27, and 28 into evidence. See Malone, 972 S.W.2d at 43; Williams, 194 S.
W.3d at 33. Nino established that the documents at issue were in Cano's possession for at least 10 months
before trial, thereby negating any unfair surprise. Accordingly, the trial court did not abuse its discretion by
admitting the exhibits. See Auld, 34 S.W.3d at 906; Williams, 194 S.W.3d at 33.
With regard to Nino's testimony, Rule 193.6(a) allows testimony by a party who is an individual when his identity
is certain and when his personal knowledge of relevant facts has been communicated to the opposing party
through pleadings, even when that party fails to list himself as a potential witness in response to discovery
requests. Smith v. Sw. Feed Yards, 835 S.W.2d 89, 91 (Tex. 1992) (discussing Rule 215(5), predecessor to
Rule 193.6(a)); see also Christian v. Christian, No. 14-99-00312-CV, 2001 WL 543685, at *2 (Tex. App.-
Houston [14th Dist.] May 24, 2001, no pet.) (not designated for publication). Where a witness's identity is
certain, the issue becomes whether his testimony should be limited because of an inadequate discovery
response. See Clark Equip. Co. v. Pitner, 923 S.W.2d 117, 122 (Tex. App.- Houston [14th Dist.] 1996, writ
denied).
Cano knew of Nino's identity and his knowledge of relevant facts regarding Defendant's Exhibits 2, 25, 26, 27,
and 28 by virtue of Nino's pleadings. The trial court scrupulously limited Nino's testimony about these exhibits
to the information found on the face of the exhibits. Nino was allowed to testify to the total number of labor
hours listed on the face of Defendant's Exhibit 2, but he was not allowed to testify as to the allotment of those
hours to individual tasks such as sanding, priming, or painting.
A party who prevails on a breach of contract claim is entitled to recover attorneys' fees for prosecution of the
claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). To recover attorneys' fees, a claimant first
must present the claim to the opposing party or his agent. Id. § 38.002(2) (Vernon 2008). The statute is to be
generously construed to promote its underlying purpose. Id. § 38.005 (Vernon 2008); Chudleigh, 2002 WL
576092, at *5.
Cano v. Nino's Paint and Body Shop, (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)
(admission of business records, business records affidavit, failure to disclose documentary evidence in
discovery, attorneys fees on breach of contract, presentment of claim as condition precedent)
Furthermore, to the extent that Cano insisted on excluding testimony beyond the face of these exhibits, his
objections were sustained. See Tex. R. App. P. 33.1. On this record, we cannot say that the trial court abused
its discretion by allowing Nino to testify about Defendant's Exhibits 2, 25, 26, 27, and 28 as limited to
information on the face of those exhibits. See Smith, 835 S.W.2d at 91; Pitner, 923 S.W.2d at 122; see also
Christian, 2001 WL 543685, at *2.
Cano also argues on appeal that he was unfairly prejudiced by Defendant's Exhibits 2, 25, 26, 27, and 28 and
Nino's related testimony because the limitations placed on Nino's testimony prevented Cano from properly
cross-examining and impeaching Nino regarding the contents of the exhibits. We need not address this
argument because of our conclusion that Cano was not unfairly surprised by admission of the exhibits. See
Malone, 972 S.W.2d at 43; Williams, 194 S.W.3d at 33. In any event, Cano cannot establish unfair prejudice on
this record because he used his own testimony and documents regarding the cost of materials and the number
of hours expended by Nino's employees in rebuttal to challenge the exhibits and Nino's testimony regarding
them. Cano testified about (1) the number of hours he and two other men spent completing the paint job after
reclaiming the airplane; (2) invoices and receipts for materials he purchased and used in finishing the paint job;
and (3) the daily diary Cano kept of labor performed on the airplane by Nino and his employees.
We overrule Cano's issue regarding the trial court's admission of testimony and documentary evidence that
was not produced in response to discovery requests.
TRCP 193.4 MANDATORY EXCLUSION OF EVIDENCE
rules requiring exclusion of evidence responsive to discovery requests if the offering party failed to timely
amend or supplement incorrect or incomplete discovery responses. See, e.g., Tex. R. Civ. P. 193.4(c), 193.5,
193.6. We therefore conclude that Woody has not shown his entitlement to mandamus relief directing the trial
court to compel more complete responses to discovery. In Re Lesikar, NO. 14-09-00016-CV (Tex.App.-
Houston [14th Dist.] May 7, 2009)(Guzman)(scope of remand, discovery mandamus denied)(segregation of
attorney's fees required, no fees for non-suited claims) (jury trial improperly denied)
Gundogan v. Woodgrove Condo (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)(Keyes)
(appeals from small claims and JP court, failure to Timely Respond to Discovery Requests,
rebuttal of presumption of receipt of documents served pursuant to Rule 21a)
Woodgrove objected to each of the four pieces of evidence on the grounds that Gundogan failed to timely
respond to discovery requests. The trial court sustained each of Woodgrove’s four objections and excluded
Gundogan’s four pieces of evidence. Having held that the trial court erred in indulging the presumption that the
request for production and notice of the motion to compel Woodgrove properly sent were received, we further
hold that the trial court erred in excluding Gundogan’s four pieces of evidence on the ground of failure to timely
respond to discovery requests.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Justices Jennings, Keyes and Higley
01-07-00876-CV Peter Kemal Gundogan v. Woodgrove Condominum
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial Court Judge: Hon. R. Jack Cagle
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