Johnson v. Fuselier

• Court: Texas Court of Appeals
• Writing for the Court: Grant
• Citation: Johnson v. Fuselier, 83 S.W.3d 892 (Tex. App. 2002)
• Decision Date: 31 July 2002
• Docket Number: No. 06-01-00002-CV.,06-01-00002-CV.
• Parties: Pauline JOHNSON and Husband, Hubert Johnson, Appellants, v. Charles O. FUSELIER, D.P.M., Appellee.

83 S.W.3d 892

Pauline JOHNSON and Husband, Hubert Johnson, Appellants, v. Charles O. FUSELIER, D.P.M., Appellee.

No. 06-01-00002-CV.

Court of Appeals of Texas, Texarkana.

Submitted January 3, 2002.

Decided July 31, 2002.

M. Mark Lesher, Monty G. Murry, Lesher & Murry, Texarkana, for appellant.

Jeffery C. Lewis, Atchely, Russell, Waldrop & Hlavinka, LLP, Texarkana, for appellee.

Before GRANT, ROSS, and CORNELIUS,^* JJ.

OPINION

Opinion by Justice GRANT.

Pauline and Hubert Johnson appeal from a summary judgment rendered against them in their medical malpractice lawsuit against Charles O. Fuselier, D.P.M. In the summary judgment, the trial court took two actions: (1) granting Defendant's Motion for Summary Judgment, and (2) striking the Johnsons' Second Amended Original Petition, their Response to the Motion for Summary Judgment, and the affidavit of Dr. James Naples attached to that motion. In this appeal, the Johnsons contend only that the trial court abused its discretion in striking their Response to the Motion for Summary Judgment, not in striking the petition.

The Johnsons sued Dr. Fuselier contending he had incompetently performed surgeries on Pauline Johnson's feet and also contending his course of treatment of her after the surgeries was negligent. On October 13, 2000, Dr. Fuselier filed a Motion for Summary Judgment contending that limitations had run since the date of the last surgery. On November 22, 2000, five days before the date set for the hearing on the motion, the Johnsons filed an amended petition and response in which Dr. Naples stated that Pauline Johnson had sustained irreversible damage to both feet due to poor surgical care and substandard follow-up treatment, which did not end until Pauline Johnson's last office visit with Dr. Fuselier on July 16, 1996, a date that would have been within limitations. At the hearing, Dr. Fuselier filed a Motion to Strike the documents and the affidavit, contending they set out new opinions that had not been properly provided through the discovery process. The motion was granted.

The Johnsons contend the trial court abused its discretion by striking their response and affidavit, and by granting Dr. Fuselier's Motion for Summary Judgment. The sequence of events shown by the record is as follows:

April 4, 1995     Dr. Fuselier's last surgery on Pauline Johnson
                June 5, 1998      Dr. Naples prepared report in which he stated the surgery was
                                    negligently performed
                July 6, 1998      Lawsuit filed
                April 6, 2000     The Johnsons answered discovery (Order to compel)
                April 10, 2000    First Amended Original Petition filed
                Sept. 19, 2000    Counsel for Dr. Fuselier informed the Johnsons Dr. Naples's original
                                    report only applied to matters barred by limitations.
                Oct. 13, 2000     Dr. Fuselier's Motion for Summary Judgment filed.
                Nov. 22, 2000     The Johnsons filed Second Amended Original Petition and summary
                                    judgment response with Dr. Naples's affidavit.
                Nov. 27, 2000     Dr. Fuselier's Motion to Strike filed.
                Nov. 27, 2000     Hearing held, Motion to Strike granted, and summary judgment granted
                                    dismissing the suit.
                

Trial had been set for the week of December 18.

Dr. Fuselier contends in his Motion for Summary Judgment that the lawsuit and the statutorily required report were predicated on allegations of injuries caused by the surgeries and contained no complaint about post-surgery care. Dr. Fuselier also takes the position that the Johnsons raised allegations of post-operative negligence and "fraudulent misrepresentation" for the first time in their Second Amended Original Petition. This statement is partially correct. The First Amended Original Petition does contain allegations that Dr. Fuselier failed to properly follow up after the operations, but does not contain any allegations that he committed fraud.

Dr. Fuselier relies on the failure in the expert report to provide any information to support a claim that post-operative care was inadequate. He argues that the expert's original report focuses on negligence in the operation and that the trial court acted within its discretion in striking the documents and affidavit because the Johnsons failed to properly and timely supplement discovery responses and provide information about the, claimed negligence in follow-up procedures, as required by TEX.R. CIV. P. 193.5(b).

The Johnsons contend the trial court abused its discretion by striking their Response to the Motion for Summary Judgment and the attached affidavit because the alleged "new information" was not new, but had previously been set out in the original expert's report. Dr. Fuselier's Motion to Strike asked the trial court to strike the response and affidavit as a discovery sanction. The trial court granted the Motion to Strike and then granted the summary judgment.

Counsel was made fully aware, by letter, of the impending limitations problem on September 19, 2000, well before Dr. Fuselier filed his Motion for Summary Judgment on October 13. The Johnsons did not, however, make any attempt to address this issue until they filed their Second Amended Original Petition and their Response the Motion for Summary Judgment with attached affidavit on November 22, 2000.¹

After conducting a hearing, the trial court struck the Response and second affidavit without explanation. Dr. Fuselier's motion sought the relief based on allegations of discovery violations. Specifically, he pointed out to the trial court that the lawsuit had been pending for two years, that no course of treatment theories had surfaced before, and that the Johnsons had not provided any supplemental disclosure to their answers to discovery concerning any post-operative allegations. Dr. Fuselier then pointed out that sixty-nine days had elapsed since the Johnsons had received Dr. Fuselier's counsel's letter setting out the limitations problem and that not only had they not supplemented discovery, they had not attempted to take any other action until the filing of the contested documents on November 22 — a date only five days before the summary judgment hearing date and less than thirty days before the trial date.

Although the docket reflects a hearing was conducted, we have no record of that hearing. Further, our docketing certificate affirmatively shows no attempt was made to obtain a record from that hearing.

We review the trial court's imposition of discovery sanctions under an abuse of discretion standard. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442-43 (Tex. 1984).

Although the Texas Supreme Court has held that a trial court has discretion to impose discovery sanctions pursuant to former TEX.R. CIV. P. 215 (Vernon 1997) when a party fails to supplement its answers to the discovery requests, the cases in which the court permitted such sanctions were determined in connection with trial — not summary judgments. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992); Newsom v. State, 922 S.W.2d 274, 280 (Tex.App.-Austin 1996, no writ). The question now before this court is whether the application of these rules in tandem is different because of the amendments made to the rules.

Dr. Fuselier directs the court to TEX.R. CIV. P. 193.6, which provides for the effect on trial of a party's failure to timely respond.² It reads in part: "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 good cause for the failure or that the failure will not unfairly surprise or prejudice the other side.

The summary judgment rule, TEX.R. CIV. P. 166a(f), provides that summary judgment proof must contain facts that would be admissible in evidence and show affirmatively that the affiant is competent to testify to the matters stated therein. Applying these two rules in combination, then, if the evidence provided as summary judgment proof will not be admissible at trial due to sanctions imposed under Rule 193.6, that evidence cannot be proper summary judgment proof. It is arguable that as a result of this application of the two rules in tandem, Rule 193.6 provides for the striking of summary judgment proof in certain circumstances.

In reviewing the rules governing discovery as they existed before the 1997 rewriting of the discovery rules, Texas courts consistently held that Rule 166b did not apply to summary judgment proceedings with respect to the duty to supplement discovery. Ezrailson v. Rohrich, 65 S.W.3d 373, 378-79 (Tex.App.-Beaumont 2002, no pet); Williams v. Huber, 964 S.W.2d 84, 88 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Stoll v. Rothchild, 763 S.W.2d 437, 441 (Tex.App.-Houston [14th Dist.] 1988, writ denied); see Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939 (Tex.App.-El Paso 1994, no writ); Huddleston v. Maurry, 841 S.W.2d 24, 28 (Tex. App.-Dallas 1992, writ dism'd w.o.j.); Diaz v. Rankin, 777 S.W.2d 496, 501 (Tex.App.-Corpus Christi 1989, no writ). The reasons for refusing to apply those rules were first articulated in Gandara v. Novasad, 752 S.W.2d 740, 742 (Tex.App.-Corpus Christi 1988, no writ). The Corpus Christi court stated that the rules of discovery were not applicable to summary judgments because the summary judgment rule provided a comprehensive framework for summary judgment proceedings. The court correctly noted that parties might not even attempt to use the witnesses who supplied affidavits for summary judgment proceedings at the trial of the case and reasoned that because Rule 166a required the affidavits to be provided within a particular time frame before the summary judgment hearing, the generic trial rules would not apply.

The court in Ersek v. Davis & Davis, P.C., 69 S.W.3d 268 (Tex.App.-Austin 2002, pet. denied), decided to the...