Lionell Breaux and L.J. Breaux, L.L.C. v. West Texas Peterbilt (Lubbock), Inc. D/B/A West Texas Peterbilt (Odessa)
11-13-00190-CV
| Tex. App. | Aug 13, 2015Background
- West Texas Peterbilt sued Appellants to collect a truck repair bill; Appellants counterclaimed under the DTPA alleging bad, non-workmanlike repairs. Peterbilt later dismissed its affirmative claims, leaving Appellants’ DTPA claim pending.
- Appellants designated Jeramie (Jeremie) Thibodeaux as a fact witness and testifying expert in Feb 2011; his address was in Louisiana.
- Peterbilt noticed Thibodeaux’s deposition for March 28, 2012 in Odessa, Texas; Thibodeaux did not appear. Peterbilt moved to exclude his expert testimony for nonappearance.
- After a hearing, the trial court ordered Thibodeaux to appear in Odessa within ten days; Appellants failed to produce him and the court entered an order excluding his expert testimony in Oct 2012.
- Peterbilt moved for no-evidence summary judgment on Appellants’ DTPA claim in Dec 2012, asserting Appellants lacked required expert proof; Appellants later filed Thibodeaux’s affidavit with their response and asked the court to reconsider excluding him.
- The trial court sustained objections to Thibodeaux’s affidavit, excluded his evidence, and granted Peterbilt’s no-evidence summary judgment; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in excluding Thibodeaux as Appellants’ testifying expert for failing to appear for a deposition in Odessa | Exclusion was erroneous because Odessa was an improper/unauthorized deposition location and Appellants’ counsel could not compel Thibodeaux’s appearance | Trial court properly excluded expert after Thibodeaux’s nonappearance; Appellants never objected to the deposition location nor sought mandamus relief to challenge the order | Court did not reach the abuse-of-discretion issue in depth; it upheld exclusion because Appellants failed to challenge the deposition location or seek mandamus and the exclusion order remained unchallenged for months |
| Whether the trial court erred in granting Peterbilt’s no-evidence motion for summary judgment after excluding Thibodeaux’s affidavit | Appellants submitted Thibodeaux’s affidavit raising genuine issues of material fact on breach of repairs/warranty | With Thibodeaux’s affidavit excluded, Appellants produced no summary-judgment evidence to raise a genuine issue; no-evidence SJ must be granted absent such evidence | Affirmed: exclusion of the affidavit left Appellants without summary-judgment evidence; no-evidence summary judgment properly granted |
Key Cases Cited
- CA Partners v. Spears, 274 S.W.3d 51 (Tex. App.—Houston [14th Dist.] 2008) (standard for reviewing admission/exclusion of evidence)
- Harris v. Showcase Chevrolet, 231 S.W.3d 559 (Tex. App.—Dallas 2007) (review of evidentiary rulings)
- Barraza v. Eureka Co., 25 S.W.3d 225 (Tex. App.—El Paso 2000) (trial court discretion on evidence)
- Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000) (admission/exclusion committed to trial court’s discretion)
- U–Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (abuse of discretion defined)
- City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995) (abuse of discretion standard)
- Wal‑Mart Stores, Inc. v. Street, 754 S.W.2d 153 (Tex. 1988) (mandamus available to challenge depositions ordered in improper locations)