Burrhus v. M&S Supply, Inc.

• Decision Date: 18 September 1996
• Docket Number: No. 04-94-00196-CV,04-94-00196-CV
• Parties: Teresa BURRHUS, Individually, as Parent and Next Friend of Christiana Burrhus, and as Representative of the Estate of Terralle A. Burrhus, Appellant, v. M&S SUPPLY, INC., Appellee.
• Court: Texas Court of Appeals

Page 635

933 S.W.2d 635

Teresa BURRHUS, Individually, as Parent and Next Friend of

Christiana Burrhus, and as Representative of the Estate of Terralle A. Burrhus, Appellant, v. M&S SUPPLY, INC., Appellee.

No. 04-94-00196-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 18, 1996.

Rehearing Overruled Oct. 23, 1996.

Gerald Y. Drought, Vincent A. Notzon, Martin, Drought & Torres, Inc., San Antonio, for appellant.

Frank E. Perez, Frank Perez & Associates, Brownsville, Will W. Pierson, Myra K. Morris, Royston, Rayzor, Vickery & Williams, L.L.P., Corpus Christi, Jan Ferguson, The Texas Property & Casualty Insurance Guaranty, Austin, Kelley G. Loud, Ross, Banks, May, Cron & Cavin, Houston, for appellee.

Before RICKHOFF, HARDBERGER and DUNCAN, JJ.

OPINION

DUNCAN, Justice.

The principle issue presented by this appeal is one of first impression--whether a trial court is required to exclude the testimony of a party's expert witness when the party fails to give notice that its expert will attend the deposition of the opposing party's expert. We hold that, while notice is required by Rule 200(2)(a), TEX.R.CIV.P, ¹ the trial court acted within its discretion in denying the motion to exclude the expert's testimony in this case. We therefore affirm the judgment.

FACTS

On September 6, 1990, Terralle Burrhus was killed in a gas explosion at a drilling rig controlled by L. Texas Petroleum, Inc. Terralle's widow, Teresa Burrhus, filed wrongful death and survivor actions against L. Texas and Penrod Drilling Company, the supplier of the rig. Before trial, the case settled; together, L. Texas and Penrod paid Burrhus $4.7 million in exchange for full releases of liability. Both releases purported to reserve Burrhus's claims against other parties that might be partially responsible for her husband's death.

After settling with L. Texas and Penrod, Burrhus sued M&S Machine Supply, alleging that an improper weld by M&S caused the explosion and Mr. Burrhus's death. During the ensuing two-week trial, Burrhus's settlement with L. Texas and Penrod was revealed through the testimony of Burrhus's attorney in both suits. The jury returned a verdict finding that L. Texas's negligence was the sole cause of Mr. Burrhus's death, and the trial court entered a take-nothing judgment against Burrhus. She now appeals, alleging the trial court erred in permitting M&S's expert to testify and in denying her motion for new trial because the evidence is factually insufficient to support the jury's finding that M&S was not negligent.

FAILURE TO EXCLUDE M&S'S EXPERT

In her first three points of error, Burrhus argues that the trial court erred in permitting M&S's expert, Edward Ziegler, to testify because he attended the deposition of Burrhus's expert without the notice required by Rule 200(2)(a), TEX.R.CIV.P. While we agree with Burrhus that Rule 200(2)(a) requires notice that an expert witness will attend the deposition of another witness, we hold that the trial court acted within its discretion in denying her motion to exclude M&S's expert as a sanction for M&S's failure to comply with Rule 200(2)(a)'s notice requirement, if it did.

Standard of Review

In her first point of error, Burrhus complains that the trial court erred in failing to exclude Ziegler as a sanction for violation of Rule 200(2)(a)'s notice requirement. The trial court's ruling on a motion to exclude a witness for violation of "the Rule" is reviewed on an abuse of discretion standard. Cf. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 647-48 (Tex.1965) (abuse of discretion of standard applies in the context of excluding a witness because of a violation of Rule 267, TEX.R.CIV.P., and Rule 614, TEX.R.CIV.EVID., during trial). The abuse of discretion standard also applies to a trial court's evidentiary rulings, whether complained of by objection at trial or through a motion for new trial, the subject of Burrhus's third point of error. W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 ST. MARY'S L.J. 1041, 1118-19 (1993). However, with respect to questions of law, the trial court has no discretion; accordingly, "a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion...." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

In her second point of error, Burrhus argues that the trial court erred in finding, if it did, that M&S complied with Rule 200(2)(a)'s notice requirement. With respect to this complaint, which rests upon the resolution of a fact issue, Burrhus "must establish that the trial court could reasonably have reached only one decision." Id. at 839-40.

Waiver by Failing to Timely Object and Obtain Ruling at Trial

M&S first contends that Burrhus waived the error of which she complains by failing to timely object to Ziegler's testifying and by failing to obtain a ruling on her objection during trial. We disagree.

The record establishes that Burrhus's motion to strike Ziegler was filed before trial on July 9, 1993. In this motion, Burrhus alleges that M&S appeared for the deposition of Burrhus's expert, Ron Britton, on June 22, 1993, accompanied by M&S's expert, Ed Ziegler. The motion further states that Burrhus's attorney objected to Ziegler's presence pursuant to Rule 267, TEX.R.CIV.P., and Rule 614, TEX.R.CIV.EVID., both of which provide for the sequestration of witnesses during trial. Burrhus's motion goes on to argue that M&S was required to give notice that Ziegler would attend Britton's deposition; M&S failed to give the required notice; and an appropriate sanction for this violation of the rules would be the exclusion of Ziegler's testimony at trial.

Just prior to trial, on July 19, the trial court heard Burrhus's motion to strike. During this hearing, Burrhus's attorney argued that notice was required, and he stated that the required notice was not given in the deposition notice or orally to his legal assistant. M&S's counsel responded that a letter was sent on June 11, approximately eleven days before Britton's deposition, and this letter notified Burrhus's counsel that Ziegler would attend Britton's deposition. When the trial judge inquired whether the address on the June 11 letter was that of Burrhus's counsel, Burrhus's counsel answered that it was and indicated he would like to withdraw his motion to strike and refile it if he determined the letter was not received. The trial judge then stated that he would allow Ziegler to testify.

On August 2, 1993, before Ziegler testified, Burrhus filed a motion to reconsider her motion to strike. In this motion, Burrhus asserted that the June 11 letter had not been received. This motion was supported by a copy of the unsigned June 11 letter and the affidavit of Burrhus's counsel's legal assistant, who testified that she had not discussed Ziegler's attendance at Britton's deposition with M&S's counsel. This motion to reconsider was urged by Burrhus's counsel immediately before Ziegler was called to testify, and at that time he represented to the trial court that he had not received the June 11 letter. Although the trial judge never expressly ruled on this motion, he orally granted Burrhus's counsel permission to make a bill of exceptions and admitted into evidence for that purpose the June 11 letter and the affidavit referenced above. ² At the conclusion of this "bill," and without further objection by Burrhus's counsel, Ziegler was called and permitted to testify.

Rule 52(a), TEX.R.APP.P., provides that "to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make" and "obtain a ruling upon the party's request, objection, or motion." With respect to the timeliness issue, the supreme court has held that a pretrial sanctions motion, heard and ruled upon the day before trial begins, does not preserve the error in permitting an undesignated witness to testify; rather, the opposing party is required to "object when the testimony or evidence is offered at trial." Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1028 (1990). Relying upon the rule enunciated in Clark, M&S argues that Burrhus waived her complaint by failing to object at the time Ziegler was called to testify.

We believe Clark is distinguishable from this case because there the opposing party did not renew his objection at any point during trial; therefore, the trial court was deprived of the "opportunity to review and correct" its earlier ruling. Id. In this case, on the other hand, the trial court was afforded an opportunity to revisit its earlier ruling when Burrhus renewed her objection to Ziegler immediately before he was called to testify; at that time, Burrhus reiterated that Ziegler should be excluded as a sanction for M&S's violation of Rule 200(2)(a)'s notice requirement. This second request meets the concern expressed in Clark and satisfies the first prong of the preservation test. We therefore reject M&S's argument that the claimed error was waived by the failure to voice the same objection and request at the moment Ziegler was called. See Klekar v. Southern Pacific Transp. Co., 874 S.W.2d 818, 824-25 (Tex.App.--Houston [1st Dist.] 1994, writ denied).

We also reject M&S's argument that Burrhus failed to obtain a ruling. While the record is less than clear in many respects, including whether Burrhus in fact withdrew her motion to strike during the pretrial hearing, it nonetheless establishes that the trial judge understood that Burrhus was requesting that Ziegler be excluded as a sanction for M&S's violation of Rule 200(2)(a) and that he denied her request expressly in the pretrial hearing and implicitly immediately before Ziegler was called. We therefore hold that Burrhus preserved the right to appellate review of the trial court's denial of her ...