Fort Brown Villas III Condo. v. Gillenwater

• Decision Date: 17 April 2009
• Docket Number: No. 07-1028.,07-1028.
• Citation: 285 S.W.3d 879
• Parties: FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. d/b/a Fort Brown Condoshares and LRI Management, Inc., Petitioners, v. Coy GILLENWATER, Respondent.
• Court: Texas Supreme Court

285 S.W.3d 879

FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. d/b/a Fort Brown Condoshares and LRI Management, Inc., Petitioners, v. Coy GILLENWATER, Respondent.

No. 07-1028.

Supreme Court of Texas.

April 17, 2009.

Rehearing Denied June 19, 2009.

Don W. Kothmann, Ann S. Taylor, Knolle Holcomb Kothmann & Callahan, P.C., Austin, TX, for Petitioner.

Andrew B. Sommerman, Heather Lynn Long, Sommerman & Quesada, LLP, Dallas, TX, for Respondent.

PER CURIAM.

In this premises liability case, we decide whether Texas Rule of Civil Procedure 193.6, which provides for the exclusion of evidence due to an untimely response to a discovery request, applies in a summary judgment proceeding. We hold that it does and, therefore, reverse the court of appeals' judgment.

In April 2004, Coy Gillenwater and his wife rented a condominium at the Fort Brown Condoshares in Brownsville. While visiting the condominium swimming pool, Gillenwater attempted to sit down in a pool-side chair. As he lowered himself into the chair, the tip of Gillenwater's right ring finger was severed by what Gillenwater alleged to be a broken weld on the chair's frame. Gillenwater filed a premises liability claim against Fort Brown. The parties entered into, and the trial court approved, an "Agreed Level III Scheduling Order," which set August 19, 2005, as the deadline for expert disclosure. See TEX.R. CIV. P. 190.4(a) (permitting the trial court to establish a "discovery control plan tailored to the circumstances of the specific suit"). The order contained all the requirements of a level three discovery plan. See id. Fort Brown subsequently agreed to two extensions of the expert disclosure deadline, to August 25, 2005, and September 22, 2005, respectively. Gillenwater failed to disclose an expert by any of these deadlines. On February 10, 2006, Fort Brown filed a no-evidence motion for summary judgment, alleging that Gillenwater presented no evidence that (1) the condition of the chair posed an unreasonable risk of harm; and (2) Fort Brown knew or reasonably should have known of any danger presented by the chair. Gillenwater's response to this no-evidence motion included an affidavit of a previously undisclosed expert, Paul Carper, P.E. Fort Brown objected to the affidavit filed with the response, arguing that (1) the expert was not timely disclosed under the scheduling order; and (2) regardless of the scheduling order's application, the expert's affidavit was conclusory. In response, Gillenwater argued that Carper's affidavit was competent summary judgment evidence, that Texas Rule of Civil Procedure 193.6 did not apply in a summary judgment setting, and that even if it did, Fort Brown was not unfairly surprised or prejudiced by the affidavit. The trial court sustained the objections, excluded the expert's affidavit, and granted Fort Brown's no-evidence motion for summary judgment. The court of appeals reversed, holding that the trial court abused its discretion in striking the expert's affidavit because Rule 193.6 does not apply in a summary judgment proceeding. 286 S.W.3d 35, 2007 WL 3227685. The court also held that the expert's affidavit was not conclusory and that it was sufficient evidence to preclude summary judgment. Id. at 39.

Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are inadmissible as evidence. TEX.R. CIV. P. 193.6(a). A party who fails to timely designate an expert has the burden of establishing good cause or a lack of unfair surprise or prejudice before the trial court may admit the evidence. TEX.R. CIV. P. 193.6(b). "A trial court's exclusion of an expert who has not been properly designated can be overturned only upon a finding of abuse of discretion." Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex.1994) (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)). Before the no-evidence motion for summary judgment was introduced to Texas trial practice, courts did not apply evidentiary sanctions and exclusions for failure to timely designate an expert witness in a summary judgment proceeding. See, e.g., State v. Roberts, 882 S.W.2d 512, 514 (Tex.App.-Austin 1994, no writ) ("Discovery rules and sanctions for failure to designate expert witnesses do not apply to summary judgment proceedings."); see also Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939-40 (Tex.App.-El Paso 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.-Corpus Christi 1988, no writ). However, in 1997, the no-evidence summary judgment motion was introduced to the Texas Rules of Civil Procedure as Rule 166a(i),¹ and in 1999, pretrial discovery rules were amended to include evidentiary exclusions under Rule 193.6. Id. at § 193.6.² Since that time, most courts of appeals have applied Rule 193.6 to summary judgment proceedings. See Thompson v. King, 2007 WL 1064078, *2 (Tex. App.-Tyler Apr. 11, 2007, pet denied) (mem.op.); Blake v. Dorado, 211 S.W.3d 429, 432 (Tex.App.-El Paso 2006, no pet.); Chau v. Riddle, 212 S.W.3d 699, 704-05 (Tex. App.-Houston [1st Dist.] 2006), rev'd on other grounds, 254 S.W.3d 453, 455 (Tex.2008); Cunningham v. Columbia/St. David's Healthcare Sys., L.P., 185 S.W.3d 7, 12-13 (Tex.App.-Austin 2006, no pet.); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex.App.-Eastland 2005, no pet.); Villegas v. Tex. Dep't. of Transp., 120 S.W.3d 26, 34-35 (Tex.App.-San Antonio 2003, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex.App.-Austin 2002, pet. denied). But see Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex.App.-Corpus Christi 2003, no pet.); Johnson v. Fuselier, 83 S.W.3d 892, 897-98 (Tex.App.-Texarkana 2002, no pet.) (both declining to apply Rule 193.6 to a summary judgment proceeding). Because we have already held that evidentiary rules apply equally in trial and summary judgment proceedings, United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally.

Our conclusion is based on the changes made to the pretrial discovery rules and the introduction of the no-evidence motion for summary judgment. The former pretrial discovery rules established a fluid deadline for discovery disclosure, which could be modified based on a change in the date of trial. Ersek, 69 S.W.3d at 272. Thus, it was possible that an exclusionary rule based on an untimely disclosure used at the summary judgment stage could exclude evidence that would later be admissible at trial. Id. at 272-73. However, the new discovery rules establish a date certain for the completion of discovery, which depends on the discovery plan level and not on the trial date. See id. at 273; see also TEX.R. CIV. P. 190.2-.4 (providing specific time periods for the end of discovery, depending on the discovery plan level). Under the new rules, there is no longer a concern that discovery will be incomplete at the summary judgment stage. See Ersek, 69 S.W.3d at 273-74. In fact, the no-evidence rule, by its very language, is to be used following discovery. TEX.R. CIV. P. 166a(i) ("After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence ....") (emphasis added). Combined with the no-evidence motion for summary judgment rule, the "hard deadline" established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and at the trial stage remains the same. See id.; Tex.R. Civ. P. 190.3. Accordingly, the 193.6 exclusionary rule applies equally to both proceedings.

Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the agreed scheduling order and subsequent extension agreements. The trial court struck the expert's affidavit and did not consider it in granting the summary judgment. 286 S.W.3d at 38. Because Rule 193.6 provides for the exclusion of an untimely expert affidavit, we hold that the trial court did not abuse its discretion in striking it.³ We also hold that Gillenwater failed to satisfy his burden of establishing good cause or a lack of unfair surprise or prejudice against Fort Brown. See TEX.R. CIV. P. 193.6(b). Gillenwater did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline.

Having held that the expert's affidavit was properly excluded, we must review the remaining evidence to determine whether the trial court appropriately granted Fort Brown's motion for summary judgment. As an invitee, Gillenwater must prove, under his premises liability claim, that (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner's failure was a proximate cause of injury to the invitee. State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). Fort Brown argues there is no evidence that Fort...