Mentis v. Barnard

Inc., 127, (Tex.App . —East 1992, writ). Massey land no v. Armco Cf. 932, Steel 652 S.W.2d

(holding pleadings that whether fail to state a may by of

cause action not be sum resolved

mary judgment), citing, Department Texas Herring, Corrections v. (Tex.1974) (holding protective that features special exception should not be summary judg motion

circumvented a pleadings plaintiffs

ment on the where action). pleadings a fail to state cause of and, grant

We therefore of error writ argument, majority hearing

without oral judgment

the Court reverses the of the court and remands the cause proceedings

district court for further consis- opinion.2

tent with this MENTIS, Individually and

Willfred as Mentis,

Next Friend of Jr. and Willfred Children, Mentis, Minor Peti-

Warren

tioner, BARNARD, Respondent.

Michael John

No. D-3869.

Supreme Court of Texas.

Argued Nov.

Decided Feb. case November governs question a final order in that sued Rules of Civil Procedure presumed Longoria be the joinder father which Raul of the determined whether allegation child, B.I.V., Chapter which includes biological 13 suit and dis- father of well paternity denying presumption posses- regarding posed issues of various related paternity of a allegations attempting to establish child, and future current of the retroactive sion required. states that Rule 39 putative father is visitation, informed support, etc. We are child joined party in person be ... shall [a] she and Ms. Valadez’s counsel both (2) relating he claims an interest ... action if State’s for new trial in the child filed motions situated and is so subject of the action to the may pur- Opportunities appeal later case. absence in his disposition of action that the case is judgment in the State’s Since the sued. impede (i) impair or practical matter aas attack, open Valadez has and since Ms. still ability protect that interest.... his opportunity to advantage of yet take suit, yet ripe to the time in this amend that, this action fact while are 2. We aware mootness, any res issues or decide discuss Attorney filed of Texas pending, General estoppel may be raised judicata or collateral Parent-Child Establish the separate Petition in the Court, a result of final order in this suit as District Relationship Judicial the 92nd suit. State’s Judge McDonald is- Hildago County, and 15 accident, percent mate cause of the with 85 former, negligence attributable to the percent the latter. The trial court and 15 to take-nothing judgment. The court entered affirmed. 853 S.W.2d 119. We reverse. 166b(6)(b) party’s duty

Rule addresses a to supplement discovery request regarding identity subject expert of an the or matter Supplementation must occur “as witness. practical, but in no event less than soon as is (30) thirty days prior beginning trial the except on leave of court.” TexR.Civ.P. lOOblOXb).1 Baskett, timely designated Gary Sibley witness not W. and Robert T. Dallas, automatically testifying is un petitioner. excluded from good is less cause shown. TexR.Civ.P. Bradshaw, Dallas, respon- Charles M. see, 215(5); e.g., Liberty Gee v. Mut. Fire dent. (Tex.1989); 765 E.F. Ins. S.W.2d 394 Youngblood, Hutton & Co. v. opinion Justice DOGGETT delivered the (Tex.1987); H.E.B., Inc., Morrow v. Court, in which Chief Justice (per S.W.2d 297 PHILLIPS, GONZALEZ, Justice Justice HIGHTOWER, HECHT, Justice Justice any designation Whether has been made GAMMAGE, join. and Justice ENOCH or whether such occurred less days easily than trial before determin- We consider trial court exclusion of the able; however, meaning soon as “as testimony expert of an witness on the practical” is less definite. In the latter situa- grounds designated that he had not been “as tion, here, presented which is the trial court 166b(6)(b) practical” soon as under Rule good need cause for consider late identifica- the Texas Rules of Civil Procedure. tion if it finds the witness was not street, crossing While Thelma Mentis practical. soon was was struck and killed an automobile driv- appear Some courts to have read the “as Although en John Barnard. suit was filed practical” requirement completely soon as death, shortly attorney after her 166b(6)(b) long out of Rule so as the witness tried the case was not retained until about thirty days more than before three response months before trial. In Peters, trial. Pedraza v. 826 S.W.2d 741 discovery, attorney designated an acci- (Tex.App. [14th no Dist.] expert dent — Houston testifying reconstruction as a writ); Coats, Hosp. Mother Frances thirty-two days witness before trial. After (Tex.App. Tyler orig. pro S.W.2d 566 jury opening selection — statements had ceeding). applied a Other courts have more completed, been was suc- stringent standard: having any testimony cessful in barred from expert By adding language prac- because he had not been identi- “as soon as practical.” upon fied “as soon as Based tical” the Texas Court has remaining permitted evidence it was to con- clothed the trial court with the discretion sider, jury negligence suppress testimony expert found that the of an proxi- identity if both Mentis Barnard constituted a witness his is tendered less than 166b(6)(b) name, provides telephone 1. TexR.Civ.P. in full: elude the address and num- ber and the witness substance of party expects If the testimony concerning which the identity subject when the or the matter of such expected testify, prac- ness is as soon as is previ- witness’ has not been tical, (30) thirty days ously response appropriate but in no event less than disclosed in to an matters, beginning inquiry directly prior except to the of trial on leave addressed these supplemented such must be to in- of court. practical.” days trial or tion was not “as soon as See thirty commences Williams, Simply finds the name was 734 S.W.2d at 193. advis- when the practical. ing long had as soon as court as how case not submitted pending not by been did itself establish that Onion, Equip. Builder’s Co. v. designation have at an earlier date would 786, 1986, orig. (Tex.App. 788 Antonio — San practical. The been trial court abused its proceeding) (per First Ti See also granting discretion in Barnard’s motion. Garrett, 802 254 tle Co. Waco v. S.W.2d of 1990), (Tex.App. on other rev’d — Waco complete, analysis how Our is not (1993); grounds, 74 v. 860 S.W.2d Williams ever, determining whether the error without Crier, (Tex.App. 734 S.W.2d 190 TexRApp.P. — Dallas constituted reversible error. denied]). 1987, orig. proceeding [leave 81(b). An in the error exclusion evidence 166b(6)(b) plain wording of Rule indi- The requires controlling if it is on a reversal both duty only designate cates that the to attaches not material issue and cumulative. See Gee expert party expects when “the Liberty Fire 766 v. Mut. Ins. S.W.2d (Tex.1989). previously [not] witness disclosed.” 396 Here the excluded wit Tex 166b(6)(b). provision not This does expert ness was an accident reconstruction R.Civ.P. filing answering or a establish a time after planned to address a central issue of the party its lawsuit which a must retain comparative negligence pedestrian the and Frances, testifying experts. 796 See Mother expert’s driver. The noncumulative calcula require does it iden- S.W.2d at 571. Neither and examination and opinions, tions based on contacting immediately upon scene, tification an ex- of the that Barnard was measurement pert potential testimony. rule does The driving 6 and 20 miles above the between require the des- dark, the to communicate per speed rainy mile limit2 on a hour ignation practical” “as soon once it is morning though as controlling, not conclu were sive, expected decided that speed caused to whether excessive called at trial. the death. Given harmful effect of the trial court’s A trial of an ex court’s exclusion excluding expert in abuse of testi- discretion

pert properly who has been mony, we reverse court of and only upon finding of can be overturned a remand for a new trial. Morrow, at abuse of discretion. 714 S.W.2d objection “the only 298. Barnard’s was Justice, SPECTOR, CORNYN, joined by expert one designation [Mentis’s] J., opinion, dissenting. I of this Part trial, month before after a lawsuit been ha[d] Rule Procedure years, filed almost two is not as soon as Under Texas of Civil 166b(6)(b), written,1 court has the practical.” Though arguing later that he the trial expert’s deposition, expert testimony if the discretion to exclude lacked sought prac- “as soon as admitted that he had it. witness was not counsel never demonstrates, rule deny opponent an tical.” this case litigant who seeks to As inject uncertainty right counterproductive into has the burden of can to use witness proceedings.2 Only designa- pre-trial when producing evidence to show that the Miller, speed, pretrial See Regarding orders. Wernerv. Barnard's (Tex.1979). Notwithstanding my pref opin- had no accident witnesses varied—one rule, ion, slow,” obligated, only say court is "not and the erence for a different this another would courts, forty like all to enforce the rules current "approximately miles an Texas third estimated before, ly place. we have our rules of As said hour.” by judi should amended civil not be See, Farah, e.g., cial decision. Alvarado adopt I 1. would recent recommendation (Tex. 1992). Court Task Force Sanctions and prac rule delete the soon as amend the "as 166b(6)(b) Instead, suggestion Rule language. as the force has 2. The court’s tical” task recommended, timing obligation fully accurately triggers also I would commit designation respond discovery request designation more than to a witnesses party potential expert after sub- thirty days the trial court's broad witnesses before trial to governs jectively "expects” to call an authority 166, which under Tex.R.Civ.P. discretion, requested designation of Barnard the trial court has abused its how- ever, probably caused In to Barnard’s motion and such error has nesses. improper judgment, or Murray rendition of an is this the Mentises’ exclude any appellate lawyer argued: other court authorized dis- Tex.R.App.P. the trial turb court’s decision. [Ijnsofar prior as what have occurred 81(b)(1). Because the trial court’s exclusion- Record, Attorney of to the time I became ary order in this instance is neither an abuse that, obviously speak I cannot but do error, of discretion nor harmful I would af- made as know that judgment appeals. firm the of the court of practicable standpoint from the soon as being lawsuit. our involved I. at- 121. Counsel made no S.W.2d wrongful This death case arises out of a tempt justify designate the failure to pedestrian-vehicle accident Dallas on Feb- discovery to a 15, 1989, ruary when Thelma Mentis hit was request approximately twenty-one served by by All vehicle driven John Barnard. argument months earlier the lawsuit. His agree witnesses that Barnard hit Mentis as fault, only suggests that he was not at crossing early morning she was six lanes of may indeed he not have been. The court rush-hour traffic in the rain. All witnesses apparently argument, im- embraces this and agree green that likewise Barnard had a plies that the Mentises are somehow excused light at the time of the accident. The sole making from earlier disclosure because the matter of contention was whether Barnard delay lawyer was not attributable to the that negligent in driving was too fast under the represented Supra, the Mentises at trial. circumstances. (noting at 15 that “the S.W.2d Ms. Mentis’s survivors filed suit on March who tried the case was not retained until 22,1989. sequence The of relevant events is trial”). three months before 1) lawyer as follows: jury Barnard’s filed a Nothing procedure, in our rules howev- demand, and case was set for trial on er, suggests timing discovery 2) 11, 1989; September lawyer responses entry particular is tied of a discovery request May submitted a on lawyer were, party into the case. If it 1989, inquiring potential expert about might readily discovery avoid sanctions for nesses; 3) the Mentises’ counsel withdrew on by substituting abuse claiming counsel and 20,1989, September apparently and was suc- that the abuse was not attributable to the 4) by ceeded Hitchery; Lawrence W. trial lawyer. Compliance new with the rules 5) 25, 1990; days was reset to June three ordinarily civil a matter is entrust- trial, before David Robert Contreras filed a by ed attorney, the client to the but this motion for continuance and asked to be sub- suggested court never par- has that a counsel, plaintiffs’ stituted as which the trial ty may discovery by hiring avoid sanctions 6) granted; court Murray, John Williams lawyer. new testimony witness whose was exclud- ed, designated potential was as a witness on fundamentally, More the court overlooks 11, 1991, January by attorney R. David upon one basis which the trial court’s order Weaver, officially was sustained, may party and confuses which 16,1991; January counsel for the Mentises on appeal bears the burden on to show that the 7) February commenced on trial court abused its discretion. The court “Simply advising states: the court as to how Thus, the excluded long witness was first pending case had been did not twenty more than months after itself designation establish that at an earlier proof enough should be infirmity. of the rule’s purpose irreconcilable with the overall of our

Supra, opinion 870 S.W.2d at 16. As the discovery encourage court's early complete rules: to intimates, only encourages discovery this rule parties disclosure of the relevant facts that the so gamesmanship. party’s obligation If a to dis- evaluate the case for settlement and avoid potential expert Alvarado, close expects arises when she ambush at trial. See 830 S.W.2d at obligation this testimony, Murray’s eyewitness Given practical.” Supra, 870 date would have been contrary, testimony probably cumulative. And at 16. an unex- was S.W.2d To delay twenty a re- court offers no reason assume plained months after testimony Hand once re- prove of what Learned quest was made does tend champion” carry the ferred a “hired will experts to as potential not was Hand, day jury. See His- with the Learned practical. as soon made Re- torical and Practical Considerations Furthermore, appeal, the trial on because Testimony, 15 HARV. garding Expert granted Barnard’s motion to exclude (1901). if exclusion L.REV. Even Murray’s testimony, the burden is on the error, however, Murray’s Mentises —not Barnard —to demonstrate that error opinion court’s does show that such exclusionary ruling the trial was made court’s jury improp- probably to reach an caused any guiding without reference to rules and jury assigned eighty-five er verdict when the H.E.B., principles. See Morrow Men- percent of the fault for the accident to (per tis, percent of to Bar- and fifteen the fault suggests opinion wrongly The court’s other- nard. conclude that the trial court would wise. rendering judgment did not err TexR.App.P. 81(b)(1). verdict. See knowledge It is trial court common over-crowded, litigation are and that dockets reasons, respectfully foregoing For the expensive, part, in because it takes too is too dissent. long. complexity involved Given the inherent balancing liti- rights in numerous

gants unique affected the trial court’s role administration, considering docket

public’s in the efficient use of limited interest resources,

judicial particularly we should area.

restrained our intervention shows, easy as this it is all too

For ease second-guess appellate decisions STEWART, Petitioner, Brad reserved to the trial court’s discretion. II. PAINT & BODY USA CUSTOM SHOP, INC., Respondent. when it The court further errs concludes Murray’s testimony was that exclusion of No. D-4090. error. the trial court excluded harmful After Murray Murray’s testimony, testified on bill Court of Texas. exception Barnard’s car was travel- Dec. Argued sixty per ling forty-five and miles between at the the accident. hour time of Feb. Decided speed eyewitnesses testified Three accident, vehicle subject at Barnard trial.

main contention travelling thirty- about

testified he was colli- per at the time of the

five miles hour

sion; Carolyn Hu- one disinterested travelling

bacek, that Barnard testified twenty-five per speed twenty to miles

at eyewitness,

hour. second disinterested travel- Soby, that Barnard was

Joy testified at forty miles-an-hour”

ling “approximately time his car hit Mentis.

Case Details

Case Name: Mentis v. Barnard

Court Name: Texas Supreme Court

Date Published: Feb 2, 1994

Citation: 870 S.W.2d 14

Docket Number: D-3869

Court Abbreviation: Tex.