Opinion
No. 11-14-00078-CV
03-17-2016
JUSTIN LEE AND KACI LEE, Appellants v. WAL-MART IN ITS ASSUMED OR COMMON NAME, INCLUDING WAL-MART STORES TEXAS, L.L.C., AND GOODYEAR IN ITS ASSUMED OR COMMON NAME, INCLUDING THE GOODYEAR TIRE & RUBBER CO. AND GOODYEAR DUNLOP TIRES NORTH AMERICA, LTD., Appellees
On Appeal from the 146th District Court Bell County, Texas
Trial Court Cause No. 243-230-B
MEMORANDUM OPINION
This appeal involves a one-car accident that caused serious injuries to Justin Lee. The trial court found that Justin Lee and Kaci Lee (Appellants) failed to timely disclose a tire defect expert witness, struck their expert's affidavit from the summary judgment evidence, declined to rule on Appellants' motion for continuance, and found that Appellants failed to raise a genuine issue of material fact in response to the opposing parties' no-evidence motion for summary judgment. We affirm.
Under a docket equalization order, the Texas Supreme Court transferred this appeal from the Third Court of Appeals to the Eleventh Court of Appeals. As required under TEX. R. APP. P. 41.3, we will decide this case in accordance with the precedent of the Third Court of Appeals. --------
Appellants allege that, on the date of the accident, Justin Lee was riding as a passenger in a friend's vehicle when the right rear tire failed and caused the driver to lose control of the vehicle. The vehicle went through a guardrail, down an embankment, and into a creek. The wreck caused serious injuries to Justin. In 2010, Justin and his wife, Kaci Lee, filed a petition against Goodyear in its assumed or common name, including the Goodyear Tire & Rubber Co. and Goodyear Dunlop Tires North America, Ltd., (the manufacturer of the tire) and Wal-Mart in its assumed or common name, including Wal-Mart Stores Texas, L.L.C., (the seller and installer of the tire) for damages they suffered as a result of what they alleged to be defects in the manufacturing, design, and marketing of the Goodyear tire as well as faulty inspection and installation.
Discovery in this case continued for several years without a docket control order signed by the trial court. Ultimately, in April 2013 and at Appellants' request, the trial court set the matter for trial on January 13, 2014. Approximately seven weeks before trial, Appellees filed a no-evidence motion for summary judgment in which they argued that Appellants had no evidence of (1) design defect, (2) manufacturing defect, (3) marketing defect, or (4) causation. Appellees also argued that any claims for damages for loss of consortium and household services that Kaci Lee might have were derivative claims and that, because Justin's claims fail, Kaci's claims fail as well.
In response to Appellees' no-evidence motion, Appellants attached the affidavit of William J. Woehrle, a tire defect expert. On the date that Appellants filed their response to Appellees' no-evidence motion for summary judgment, Appellants filed a verified motion for continuance in which they argued that there had been inadequate time for discovery because both sides still needed to take depositions and because Appellants needed more discovery on the defect issue. Appellants did not bring discovery issues to the attention of the trial court until approximately ten days before trial. The day before the summary judgment hearing, Appellees filed a motion to strike Woehrle's affidavit pursuant to Rule 193.6 of the Texas Rules of Civil Procedure because Appellants failed to disclose Woehrle as an expert prior to the expert-designation deadline.
At the summary judgment hearing, Appellants agreed that they had not properly disclosed Woehrle as an expert. Appellants admitted that a lack of diligence caused the failure to disclose Woehrle. The trial court granted Appellees' motion to strike Woehrle's affidavit and granted Appellees' no-evidence motion for summary judgment. By e-mail, the trial court indicated that there was no need to rule on Appellants' motion for continuance because "all claims of the Plaintiff are denied." The record contains no order in which the trial court denied Appellants' motion for continuance.
In Appellants' second issue, they allege that the trial court erred when it struck Woehrle's affidavit. The trial court struck the affidavit pursuant to Rule 193.6. 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, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
TEX. R. CIV. P. 193.6(a). We review a trial court's grant of a motion to strike an expert affidavit for an abuse of discretion. F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 220-21 (Tex. App.—Eastland 2005, no pet.); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 270 (Tex. App.—Austin 2002, pet. denied).(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
Appellants argue that the trial court entered a death penalty sanction when it granted Appellees' motion to strike Woehrle's affidavit and that this sanction was improper under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). In TransAmerican, the Supreme Court of Texas created a test to determine whether a sanction entered by a trial court for discovery abuses was "just." 811 S.W.2d at 917. Specifically, the court analyzed whether a discretionary sanction was "just" by determining whether the sanction was directly connected to the offensive conduct and was not excessive. Id. Appellants argue that the Supreme Court of Texas has applied TransAmerican to Rule 193.6 in two cases: Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005), and PR Investments & Specialty Retailers, Inc. v. State, 251 S.W.3d 472 (Tex. 2008). However, neither of these cases involved the application of TransAmerican to the exclusion of a witness under Rule 193.6. We note, however, that the supreme court applied TransAmerican in a case in which admissions were deemed pursuant to TEX. R. CIV. P. 198. Marino v. King, 355 S.W.3d 629, 632-34 (Tex. 2011) (holding that the trial court erred in granting summary judgment based upon deemed admissions and stating that, "when admissions are deemed as a discovery sanction to preclude a presentation of the merits, they implicate the same due process concerns as other case-ending discovery sanctions").
Appellants additionally rely on an unpublished case out of this court to support their position that, when the trial court disallowed the expert's testimony, it, in effect, imposed a death penalty sanction in violation of the rules set out in TransAmerican. See In re G.N.H., No. 11-05-00405-CV, 2006 WL 3094354, at *3 (Tex. App.—Eastland Nov. 2, 2006, no pet.) (mem. op.). G.N.H. is not controlling precedent because the case now under consideration is a transfer case from the Austin Court of Appeals, and we are bound to follow precedent set by the transferor court. TEX. R. APP. P. 41.3.
The Austin court addressed a similar contention in White v. Browning, No. 03-04-00273-CV, 2006 WL 151980, at *5 (Tex. App.—Austin Jan. 19, 2006, pet. denied) (mem. op.). There, the court stated that the exclusion of expert testimony for admissibility reasons is a substantive deficiency rather than a sanction under Rule 215. White, 2006 WL 151980, at *5. Rule 193.6 prohibits the admission of testimony offered through an untimely designated witness unless the proponent shows good cause for the failure to timely designate and also shows that the opposite party would not be unfairly surprised or prejudiced as a result of the late designation. Id. The penalty for a Rule 193.6 violation is a mandatory, automatic exclusion of the evidence, absent proof of one of the named excuses. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992); F & H Invs. Inc. v. State, 55 S.W.3d 663, 669 (Tex. App.—Waco 2001, no pet.). The Austin court in White cited to Kernan v. Cratty for the proposition that a court has no choice but to exclude the testimony of an untimely designated expert in the absence of a showing of good cause or lack of unfair surprise or prejudice. White, 2006 WL 151980, at *5 (citing Kernan v. Cratty, No. 14-00-00865-CV, 2001 WL 1136153 (Tex. App.—Houston [14th Dist.] Sept. 27, 2001, no pet.) (not designated for publication)); see also Wilson v. Wachsmann, No. 03-04-00504-CV, 2006 WL 1865522, at *6-7 (Tex. App.—Austin July 7, 2006, no pet.) (mem. op.) (applying only Rule 193.6 to an issue in which the appellants complained that the trial court's exclusion of witnesses constituted a "death penalty sanction").
Here, Appellants failed to show, or even argue, that good cause existed as to why they failed to disclose Woehrle or that the failure to disclose Woehrle as an expert did not lead to unfair surprise or prejudice to Appellees. Instead, at the hearing on the motion to reconsider the trial court's rulings, Appellants indicated only that the failure to designate Woehrle was due to a lack of diligence by the attorney handling the case. In light of White and Alvarado, we cannot find that the trial court abused its discretion when it struck Woehrle's affidavit from the summary judgment evidence because Appellants had failed to disclose Woehrle as an expert during discovery. See TEX. R. CIV. P. 193.6; see also Fort Brown Villas III Condo. Ass'n v. Gillenwater, 285 S.W.3d 879, 880 (Tex. 2009) (holding that it is proper to apply Rule 193.6 to summary judgment proceedings).
Moreover, even if we were to consider this as a "death penalty" case and apply TransAmerican, we would uphold the trial court's exclusion of Appellants' expert witness because the sanction was directly connected to the offensive conduct and was not excessive under the circumstances in this case. See TransAmerican, 811 S.W.2d at 917. We overrule Appellants' second issue.
In Appellants' first issue, they argue that the trial court abused its discretion when it denied Appellants' motion for continuance under Rule 193.6(c). Appellants filed a verified motion for continuance on the same date that they filed their response to Appellees' no-evidence motion for summary judgment. In the motion for continuance, Appellants argued that adequate time for discovery had not passed, that Appellants needed the deposition of Appellees' corporate representative, and that Appellees had yet to depose Appellants. Further, Appellants stated that they needed more discovery on the defect issue.
The trial court heard argument on Appellants' motion for continuance at the same time as the hearing on Appellees' no-evidence motion for summary judgment. At the hearing, Appellants further requested a continuance and leave to designate Woehrle as an expert. Later, the trial court implicitly denied these requests when it granted Appellees' motion to strike and motion for summary judgment. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114 (Tex. App.—Waco 1999, no pet.) ("[W]e conclude that the trial court's granting of Bank One's summary judgment creates an inference that the court implicitly overruled Williams's motion for continuance."). Appellants argue that the trial court erred when it denied the motion for continuance based on a lack of adequate time for discovery and that a lesser sanction than the exclusion of the expert affidavit was warranted.
Rule 166a(i) of the Texas Rules of Civil Procedure provides that, after adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party has the burden of proof. TEX. R. CIV. P. 166a(i). We review a trial court's determination that there was an adequate time for discovery under an abuse-of-discretion standard. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To determine whether the trial court permitted an adequate time for discovery we consider several factors, such as the nature of the case, the nature of the evidence necessary to controvert the no-evidence motion, the length of time the case was active, the amount of time the no-evidence motion was on file, whether the movant had requested stricter deadlines for discovery, the amount of discovery that had already taken place, and whether the discovery deadlines in place were specific. McInnis, 261 S.W.3d at 201; see also Milici v. Corr. Corp. of Am., No. 11-03-00373-CV, 2005 WL 673305, at *1 (Tex. App.—Eastland Mar. 24, 2005, pet. denied) (mem. op.) ("An adequate time for discovery depends upon the nature of the claims, the evidence needed to controvert the motion, the length of time the case has been on file, and any deadlines set by the court."). The same factors are relevant to the analysis of whether the trial court abuses its discretion when it denies a motion for continuance under Rule 193.6. Barr v. AAA Tex., LLC, 167 S.W.3d 32, 38 (Tex. App.—Waco 2005, no pet.). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). But see Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662-63 (Tex. 2009) (holding that it is not necessary for a party to file an affidavit or motion for continuance to preserve error when the trial court denies the party its ability to conduct any discovery on the contested claim).
Appellants' oral request for continuance, based on the failure to designate Woehrle, was not supported by an affidavit or verified motion and was not consented to by opposing counsel. Therefore, we will not consider the oral request on appeal because it does not comply with the standards set forth in Rule 251. TEX. R. CIV. P. 251 ("No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law."). Nevertheless, Appellants filed a verified motion for continuance in which they argued that adequate time for discovery had not passed.
In Appellees' no-evidence motion for summary judgment, they alleged that adequate time for discovery had passed because the matter had been pending since May 13, 2010. Appellants argue that there was not an adequate time for discovery because (1) it is a complex matter; (2) the evidence necessary to controvert the no-evidence motion for summary judgment was crucial; (3) the no-evidence motion for summary judgment had only been on file for slightly over a month; (4) strict deadlines were not ruled on by the court; (5) the parties had engaged in significant discovery; and (6) the discovery period was vague.
Although Appellants claim that these factors weigh in favor of continuance, we disagree. The matter is complex, and there is no question that Woehrle's testimony and affidavit were critical to the case. However, Appellees correctly note that, in Appellants' verified motion for continuance, they did not address Appellants' failure to designate Woehrle during discovery. As a result, the critical nature of Woehrle's designation is inapplicable to this motion for continuance. Further, because Appellants did not show the critical nature of the other discovery they seek, we find that this factor weighs against Appellants.
Appellees filed a request for the trial court to implement a docket control order, but the court did not sign the order implementing a level three discovery period. Consequently, both parties acknowledge that level two discovery deadlines were formally in effect. See TEX. R. CIV. P. 190.4(b) (providing that a case remains under a level one or level two discovery plan unless the court specifically provides otherwise). Thus, contrary to Appellants' argument, strict and unambiguous discovery deadlines were in place.
Further, Appellants claim that a significant amount of discovery had taken place; yet, they argue that neither party had taken any depositions and that Appellants still needed further discovery on the defect issue. Appellants did not provide the trial court with more information on what significant discovery had taken place. Consequently, we do not find that this factor weighs in Appellants' favor.
Finally, Appellants filed the petition in this suit on May 13, 2010. The pretrial process continued for over three years, until Appellees filed a no-evidence motion for summary judgment shortly before trial. We find that this factor weighs significantly against Appellants. In this case, a review of the factors does not show that the trial court abused its discretion when it denied Appellants' verified motion for continuance. See Downer, 701 S.W.2d at 241-42.
Further, even if we were to consider Appellants' oral request for continuance, we could not find that the trial court erred when it denied that request. Rule 193.6(c) provides that a trial court "may grant a continuance or temporarily postpone the trial," even when a party fails to show good cause or a lack of unfair surprise or prejudice to the other party, and allow "discovery regarding any new information presented by that response." TEX. R. CIV. P. 193.6(c). However, the decision to grant a motion for continuance under Rule 193.6 is at the discretion of the trial court. See TEX. R. CIV. P. 193.6(c); Barr, 167 S.W.3d at 38. This case had been on the trial court's docket for over three years. Appellants waited until approximately ten days prior to the date set for trial to bring any discovery issues to the trial court's attention. The summary judgment hearing was one business day before the date set for trial. Appellants did, in fact, fail to designate Woehrle as an expert witness. Additionally, Appellants did not attempt to show good cause or a lack of unfair surprise or prejudice to Appellees for the failure to designate Woehrle. We cannot say that the trial court acted without reference to any guiding principles when it denied Appellants' motion for continuance under Rule 193.6(c); therefore, we cannot say that the trial court abused its discretion. See TEX. R. CIV. P. 193.6(c), 252; Downer, 701 S.W.2d at 241-42. We overrule Appellants' first issue.
We affirm the judgment of the trial court. March 17, 2016
JIM R. WRIGHT
CHIEF JUSTICE Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.