Opinion
No. 01-02-00027-CV.
January 23, 2003.
Appeal from County Civil Court at Law No. 3, Harris County, Texas, Trial Court Cause No. 695,056.
Panel consists of Justices TAFT, ALCALA, and PRICE.
MEMORANDUM OPINION
This is a discovery-sanction case under former rule 215.5 of the Rules of Civil Procedure. Appellant, Willie Ceasar, sued appellee, Ericka A. Rodriguez, for personal injuries and now appeals a take-nothing judgment rendered in favor of Rodriguez. The trial court rendered this judgment after refusing to permit Ceasar to testify in response to Rodriguez's objection that Ceasar had not identified himself as a person with knowledge of relevant facts in his responses to Rodriguez's interrogatories. Ceasar brings a single issue to challenge the trial court's refusal to permit him to testify. We reverse and remand.
Background
Ceasar's pleadings allege he was seated at the far rear of a Houston Metro bus when the car Rodriguez was driving collided with the rear of the bus with sufficient force that Ceasar was injured. Ceasar sued Rodriguez for damages related to his claimed injuries. The record reflects the following undisputed facts concerning the parties' pretrial discovery:
— Rodriguez deposed Ceasar.
— Rodriguez's insurance carrier took a statement from Ceasar.
— Rodriguez relied on that statement in responding to Ceasar's discovery requests.
— In response to Rodriguez's first set of interrogatories, Ceasar identified the following as persons with knowledge of relevant facts: Rodriguez, the passenger in her car, the driver of the Metro bus, several of his fellow passengers on the bus, and the police officer who investigated the accident. Ceasar did not, however, identify himself as a person with knowledge of relevant facts.
— In response to Ceasar's first set of interrogatories, Rodriguez identified the following as persons with knowledge of relevant facts: the same individuals Ceasar identified; five additional individuals; and Ceasar.
In his opening statement to the jury on the day of trial, trial counsel for Rodriguez referred to three different statements Ceasar made in pretrial deposition testimony. Rodriguez's counsel explained he was alerting the jurors to these statements because of defects he perceived in the causation and damages elements of Ceasar's case. Following the opening statements, and while the jury was not present in the courtroom, Rodriguez's counsel asserted the following objection to any testimony by Ceasar:
MR. RIOS: Furthermore, Your Honor, . . . the defendant would object to Mr. Ceasar['s] being called to the stand at all in this case because he himself is not represented as a person with relevant knowledge in this case.
. . . .
Your Honor, in regards to Mr. Ceasar['s] testifying, again, he has not been designated as a person with relevant knowledge. And pursuant to the — I believe it's the HEB case [—] it talks about witnesses have to be designated themselves for them to be called, even if they are a party.
. . . .
It would specifically be in regard to Interrogatory No. 9, asking: "Please identify any potential party and/or all persons having knowledge either directly or indirectly of the relevant facts concerning the issues, claims[,] and defenses in this lawsuit. Your responses should include their complete name, address, telephone number and a brief statement as [sic] their knowledge and/or opinions." And Mr. Ceasar is not listed.
. . . .
THE COURT: Any response for the record?
MR. HEANEY: Judge, interrogatory No. 9 does not list Mr. Ceasar, it lists a whole list of other people.
THE COURT: Objection sustained.
After the jury returned to the courtroom, and the trial court instructed Ceasar to call his first witness, Ceasar's counsel inquired of the court, "Under the Court's ruling Mr. Ceasar cannot testify?" When the trial court indicated that was her ruling, Ceasar rested. Outside the presence of the jury, Rodriguez moved and was granted a directed verdict based on "no evidence pursued forward." The trial court later granted Rodriguez's motion for entry of a take-nothing judgment based on Ceasar's failure to prove his case.
Which Rule Governs — Rule 215.5 or Rule 193.6?
In the trial court, Rodriguez maintained that Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), barred Ceasar from testifying. Morrow construed former rule 215.5, which states as follows:
5. Failure to Respond to or Supplement Discovery.
A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.
Tex.R.Civ.P. 215.5 (former rule), superseded by Tex.R.Civ.P. 193.6. See Tex.R.Civ.P. 215 (comments to 1999 change). In this Court, however, Rodriguez contends that new rule 193.6, not former rule 215.5, controls.
New rule 193.6 states as follows:
193.6. Failing to Timely Respond — Effect on Trial
(a) Exclusion of Evidence and Exceptions. 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:
(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.
Tex.R.Civ.P. 193.6.
Rule 193 was enacted on August 5, 1998 and amended on November 9 and December 31, 1998, to become effective January 1, 1999. See Tex.R.Civ.P. 193 (noting effective date). Rule 193 recognizes an exception, "that a response to a discovery request, an assertion of a privilege, or an amendment or supplementation to a discovery request made before [January 1, 1999] need not comply with the new rule." Id. Ceasar filed his responses to Rodriguez's first set of interrogatories on March 2, 1998, and thus before the effective date of new rule 193.6. Accordingly, we hold that former rule 215.5 controls the sanction imposed by the trial court.
Standard of Review
We review the trial court's sanctioning Ceasar by refusing to permit him to testify under the abuse-of-discretion standard. See Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex. 1992) (recognizing trial court's discretionary authority under rule 215). We may not set aside a trial court's discovery sanction, therefore, unless the trial court clearly abused its discretion. Lewis v. Western Waste Indus., 950 S.W.2d 407, 409 (Tex.App.-Houston [1st Dist.] 1997, no pet.). To establish a clear abuse of discretion, the party challenging the sanction must show that the trial court failed to act with reference to any guiding rules and principles. Id. at 410. The test for abuse of discretion is whether the trial court's decision was arbitrary or unreasonable in light of all the circumstances of the case. Id. We review the trial court's rulings deferentially when they depend on the credibility of witnesses, see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992), but a trial court has no discretion when determining what the law is, which law governs, or how to apply the law. Id. at 840. Accordingly, we review these latter determinations de novo. See id.; O.C.S., Inc. v. PI Energy Corp., 24 S.W.3d 548, 551 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
To be entitled to reversal, Ceasar must not only establish that the trial court erred by entering the sanction of not permitting Ceasar to testify, but also that the error (1) probably caused the rendition of an improper judgment or (2) probably prevented Ceasar from presenting his case to this Court. See Tex.R.App.P. 44.1(a)(1)-(2); see also Lewis, 950 S.W.2d at 410 (decided under reversible-error standard of former Tex.R.App.P. 81(b)(1)). We review the entire record to determine whether an erroneous discovery sanction constitutes reversible error. See Lewis, 950 S.W.2d at 410.
Failure of Party to Designate Himself as a Witness
Former rule 166b(2)(d) governed pretrial discovery of the identity of persons with knowledge of relevant facts who might testify at trial. See Tex.R.Civ.P. 166b(2)(d) (former rule), superseded by Tex.R.Civ.P. 192.3(c) (current rule); Smith v. Southwest Feed Yards, 835 S.W.2d 89, 91 (Tex. 1992). The purpose of requiring disclosure is to allow the opposing party to locate, interview, and depose the proposed witness. $23,900.00 v. State, 899 S.W.2d 314, 317 (Tex.App.-Houston [14th Dist.] 1995, no writ). The rule 215.5 sanction of "loss of the opportunity to present the witness' [sic] testimony" was "automatic" under rule 215.5 if the party offering the witness failed to respond or supplement required discovery unless that party satisfied the standard, stated in rule 215.5, to establish sufficient good cause to permit the witness to testify. Morrow, 714 S.W.2d at 297-98; see Tex.R.Civ.P. 215.5 (former rule). Good cause had to be demonstrated on the record and is the only exception to the automatic sanction under former rule 215.5. See Morrow, 714 S.W.2d at 297-98; Henry S. Miller Co., 836 S.W.2d at 162; Tex.R.Civ.P. 215.5. The purpose of rule 215.5 was to prevent trial by ambush, not to create traps for the unwary. See Smith, 835 S.W.2d at 91.
Parties were not exempt from the disclosure requirement in response to an appropriate discovery request. See Henry S. Miller Co., 836 S.W.2d at 162; see also Smith, 835 S.W.2d at 90 (acknowledging that party demonstrates "at least a potential awareness of facts" bearing on merits of claim or defense by filing pleading, but declining to accept that merely filing pleading is sufficient basis to support right to testify). Accordingly, neither status as a party nor the fact that a witness has been deposed sufficed alone to establish good cause, although these could combine to constitute good cause. See Henry S. Miller Co., 836 S.W.2d at 162.
When a party does not designate himself as a person with knowledge of relevant facts, good cause may exist, as contemplated by former rule 215.5, to allow that party to call himself as a witness when (1) his identity was certain and (2) his "personal knowledge of relevant facts ha[d] been communicated to all other parties, through pleadings by name and response to other discovery requests" disclosed at least 30 days before trial. Id. (quoting from Smith, 835 S.W.2d at 91). Good cause should be determined, in this instance, not by focusing on the isolated, incomplete response that prompted the opposing party's motion seeking to bar the party from testifying, but by examining the entirety of the party's responses to discovery. Smith, 835 S.W.2d at 91.
Here, however, Rodriguez's counsel contravened Smith by directing the trial court solely to the isolated omission of Ceasar's name in his response to Rodriguez's interrogatory No. 9. Rodriguez's interrogatory no. 9 and Ceasar's first-listed response to that interrogatory are as follows:
INTERROGATORY #9:
Please identify any potential party and/or all persons having knowledge either directly or indirectly of relevant facts concerning the issues, claims and defenses in this lawsuit. Your response should include their [sic] complete name, address, telephone number, and a brief statement of their [sic] knowledge and/or opinions.
ANSWER: No other parties that I'm aware of.
(Bolded emphasis in original.) Ceasar then provided the names of 16 additional persons. The reporter's record does not clearly indicate whether, in moving to exclude Ceasar from testifying, Rodriguez proffered the entirety of Ceasar's responses to Rodriguez's interrogatory responses to the trial court.
There was no ambush by Ceasar here. In acknowledging that the response to interrogatory no. 9 did not specify Ceasar, Ceasar's counsel pointed out that the response listed many other potential witnesses. Ceasar's preliminary response to interrogatory No. 9 first stated, "No other parties that I'm aware of" (emphasis added) before providing the 16 additional, potential witnesses. In stating that there were no known additional parties while listing 16 additional, potential witnesses, Ceasar's response to the interrogatories does not negate his testifying as a witness but rather suggests that he contemplated himself as a party-witness with knowledge of relevant facts. The record further reflects that, despite Ceasar's not being identified by name in his response to interrogatory no. 9, Rodriguez identified Ceasar as a witness and also relied on Ceasar's statements to Rodriguez's insurance carrier in her own responses to Ceasar's interrogatories. In opening statement to the jury, moreover, Rodriguez's counsel repeatedly referred to statements Ceasar made under oath, in pretrial deposition testimony, that Rodriguez's counsel indicated he would rely on to dispute the causation and damages elements of Ceasar's case. These statements to the jury imply that Rodriguez contemplated that Ceasar would offer testimony on those elements and thus demonstrate awareness that Ceasar would testify.
Under the record presented by this case, we conclude that (1) Ceasar's identity was "certain" and (2) his "knowledge of relevant facts" fully "communicated" to Rodriguez well in advance of trial. See Smith, 835 S.W.2d at 91.
We therefore hold that the record established good cause under rule 215.5 to permit Ceasar to call himself as a witness and that the purposes underlying former rule 166b(2)(d) were served. See $23,900.00, 899 S.W.2d at 317. Accordingly, the trial court abused its discretion by refusing to permit Ceasar to testify.
Was Ceasar Required to Make an Offer of Proof?
Rodriguez contends Ceasar waived any error by failing to make an offer of proof under rule 103(a)(2) of the Rules of Evidence. See Tex.R.Evid. 103(a)(2). We disagree. Rule 103(a)(2) bars predicating any claim of error on a ruling that excludes evidence unless (1) a substantial right of a party is affected and (2) the substance of the evidence was made to the court by offer of proof. Id. The primary purpose of rule 103(a)(2) is to enable a reviewing court to determine whether the exclusion was erroneous and harmful. Ludlow v. Berry, 959 S.W.2d 265, 270 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 103.3 at 21 (2d ed. 1993)). In addition, the offer of proof provides the trial court an opportunity to reconsider its ruling in light of the actual evidence. Id.
We have concluded that the record demonstrates good cause to permit Ceasar to testify, based in significant part on Rodriguez's demonstrated awareness, not only that Ceasar would testify, but also what his testimony would be. We further hold that the remarks by Rodriguez's counsel in opening statement, which referred to Ceasar's deposition testimony, sufficed to establish a record of proof that Rodriguez contemplated that Ceasar would testify and knew what the content of that testimony would be. Although we recognize that a further offer of proof would have better alerted the trial court of the significance of Ceasar's testimony, we are of the opinion that the trial court should have realized, from Rodriguez's opening statement, not only that Rodriguez was not surprised when Ceasar attempted to testify, but also that Rodriguez was aware of the content and importance of Ceasar's testimony and fully expected Ceasar to testify.
No further offer was necessary for us to conclude that not permitting Ceasar to testify was harmful. This is not a case in which an opponent succeeded in preventing an Ceasar from tendering a particular piece of evidence, but a case in which an opponent succeeded in barring the Ceasar from offering any testimony whatsoever. On its face, rule 215.5 mandates solely that the record demonstrate good cause, and we have held that the record here satisfies that standard. Rule 215.5 does not impose the additional burden of requiring an offer of proof. Tex.R.Civ.P. 215.5. In recognizing that a party may demonstrate good cause to avoid the automatic sanction of rule 215.5, Smith considered only the appealing party's interrogatories responses and his having been deposed. 835 S.W.2d at 90-91. Smith did not impose the additional requirement of a formal offer of proof under rule 103(a)(2).
This Court has required that parties who challenge rule 215.5 sanctions must preserve error through an offer of proof. Weng Enter., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 221 (Tex.App.-Houston [1st Dist.] 1992, no writ); see also Morris v. Short, 902 S.W.2d 566, 570-71 (Tex.App.-Houston [1st Dist.] 1995, writ denied). These cases are distinguishable in that neither involves a party who was not permitted to call himself or herself as a witness. Each arose instead from a challenge to the trial court's refusal to permit a party to call the adverse party as a witness. See Weng Enter., Inc., 902 S.W.2d at 220; Morris, 837 S.W.2d at 569. In that context, imposing the requirement of an offer of proof comports more logically with the purposes that underlie rule 103(a)(2) by requiring the party offering the testimony to show the opponent's knowledge of relevant facts.
Having concluded that the trial court abused its discretion by refusing to permit Ceasar to testify and that Ceasar was not required to make an offer of proof to preserve error, we further conclude, based on the trial court's having entered a take-nothing judgment in favor of Rodriguez as a consequence of his not having met his burden of proof, that the trial court's error in refusing to permit Ceasar to testify constituted reversible error under rule 44.1(a)(1). See Tex.R.App.P. 4.1(a)(1).
We sustain Ceasar's sole point of error.
Conclusion
We reverse the judgment of the trial court and remand the cause for further proceedings.