Matagorda County Hosp. Dist. v. Burwell, 13-00-00271-CV.

• Decision Date: 29 August 2002
• Docket Number: No. 13-00-00271-CV.,13-00-00271-CV.
• Citation: 94 S.W.3d 75
• Parties: MATAGORDA COUNTY HOSPITAL DISTRICT, Appellant, v. Christine BURWELL, Appellee.
• Court: Texas Court of Appeals

94 S.W.3d 75 MATAGORDA COUNTY HOSPITAL DISTRICT, Appellant,
v.
Christine BURWELL, Appellee. No. 13-00-00271-CV. Court of Appeals of Texas, Corpus Christi-Edinburg. August 29, 2002. Opinion Denying Rehearing December 19, 2002.

Page 76

COPYRIGHT MATERIAL OMITTED

Page 77

COPYRIGHT MATERIAL OMITTED

Page 78

COPYRIGHT MATERIAL OMITTED

Page 79

Mark A. Keene, Davis & Davis, Austin, for appellant.

Lynn J. Klement, Angleton, for appellee.

Before Justices DORSEY, HINOJOSA, and CASTILLO.

OPINION

Opinion by Justice HINOJOSA.

Appellant, Matagorda County Hospital District ("MCHD"), appeals from the trial court's judgment in favor of appellee, Christine Burwell ("Burwell"), in her suit for wrongful termination. By three points of error, MCHD contends: (1) the trial court's exclusion of witnesses as a discovery sanction was harmful error, (2) the evidence is factually and legally insufficient to support the jury's finding that MCHD's personnel policy manual is an employment contract, and (3) the evidence conclusively established just cause for the termination of employment. We affirm.

A. BACKGROUND

Christine Burwell was promoted to collections supervisor shortly after she began her employment with the Matagorda

Page 80

County Hospital District in 1984. In February 1994, she was placed on probation for exhibiting poor work attitude, breaching patient confidentiality, and engaging in personal business at work. While on probation, MCHD terminated Burwell's employment because of additional policy violations.

Burwell filed suit against MCHD on December 28, 1994, for breach of employment contract and age discrimination. MCHD answered and filed a "Motion for Partial Summary Judgment," asserting that Texas's "at-will" employment doctrine precluded Burwell's breach of contract claim. The trial court granted MCHD's motion for partial summary judgment. On appeal, we reversed the summary judgment because we found that a fact question existed.¹

In February 1999, Burwell served requests for disclosure on MCHD, in accordance with the "new" rules of civil procedure.² In March 1999, MCHD responded to Burwell's requests, but it did not disclose the names of four Hospital employees who had given statements in 1996.

On November 4, 1999, the trial court issued a Docket Control Order, setting the case for trial on January 10, 2000 and directing that all discovery requests and depositions be completed by November 29, 1999. The order did not set any deadlines for supplementation. On November 29, 1999, MCHD supplemented its discovery responses to Burwell's interrogatories, requests for disclosure, and requests for production. As part of its supplemental response to Burwell's request for disclosure, MCHD produced the four witness statements obtained from the Hospital employees in 1996.

On December 7, 1999, Burwell filed a "Motion for Sanctions" complaining that MCHD's supplemental discovery answers were untimely. She sought, inter alia, to strike the testimony or the use of any statement provided by any of these four witnesses. After hearing the motion for sanctions, the trial court refused to allow three of the four witnesses to testify. The jury subsequently returned a verdict in favor of Burwell on her breach of employment contract claim, and in favor of MCHD on Burwell's age discrimination claim. This appeal ensued.

B. EXCLUSION OF TESTIMONY

By its first point of error, MCHD contends the trial court's exclusion of witnesses as a discovery sanction was harmful error. MCHD complains primarily of the exclusion of one witness, Carol Galow, who was present when Burwell allegedly violated hospital policy by criticizing the nursing staff and violating patient confidentiality.³

Page 81

MCHD asserts the exclusion of Galow was error because its supplementation of Burwell's discovery requests naming Galow as a witness was either (1) timely under the rules, (2) the voluntary production of arguably privileged witness statements not violative of any rule or court order, or (3) did not result in any surprise to Burwell.

We review a trial court's decision to exclude testimony under an abuse of discretion standard. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986); Durham Transp., Inc. v. Valero, 897 S.W.2d 404, 415 (Tex.App.-Corpus Christi 1995, writ denied). To determine if there is an abuse of discretion, we must look to see if the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Parties have an affirmative duty to supplement answers to discovery requests, including the identification of individuals with knowledge of relevant facts or individuals designated as trial witnesses. TEX.R. CIV. P. 193.5(a)(1); see Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989). An amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. TEX.R. CIV. P. 193.5(b) (emphasis added).

When a party fails to make, amend, or supplement a discovery response in a timely manner, sanctions are appropriate. Tex.R. Cw. P. 193.6(a). The exclusion of the evidence is the sole remedy for not timely supplementing discovery. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992). The remedy is mandatory and automatic. See id. An exception to the rule exists when the court finds there was good cause for the failure to amend or supplement, or the failure will not unfairly surprise or prejudice the other party. TEX.R. CIV. P. 193.6(a); Morrow, 714 S.W.2d at 297-98.

Here, Burwell served MCHD with her requests for disclosure in February 1999. MCHD responded to the requests in March of 1999. MCHD did not supplement its response and identify Galow as a trial witness until November 29, 1999, some nine months after the initial request. Accordingly, we conclude the trial court was within its discretion in determining that MCHD, by waiting nine months, did not supplement its response "reasonably promptly." Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 n. 2 (Tex.App.-Austin 2002, pet. denied).

MCHD contends that it timely supplemented its response under the discovery rules, because supplementation made more than thirty days before trial is not a proper basis upon which to exclude testimony. In support of its contention, appellant cites Texas Rule of Civil Procedure 193.5(b), which states: "it is presumed that an amended or supplemental response made less than 30 days before trial was not made reasonably promptly." TEX.R. CIV. P. 193.5(b). Essentially, appellant argues that the reverse presumption applies, i.e., that supplementation made more than thirty days before trial is reasonably promptly. We disagree. Had such a presumption been intended, we conclude it would have been expressly incorporated into the rules. Snider v. Stanley, 44 S.W.3d 713, 715 (Tex. App.-Beaumont 2001, pet. denied).

MCHD also contends that the four witness statements it obtained in 1996 were arguably privileged information, and as such, the voluntary disclosure of such information does not violate any rule or

Page 82

court order.⁴ As we noted above, the events in this case occurred in 1994. At that time, the former rules of discovery were still in effect. Under those rules, witness statements⁵ and party communications⁶ were protected from disclosure by privilege. See former TEX.R. CIV. P. 166b(3)(c), (d) (Vernon 1998, repealed by orders of Aug. 5, 1998, and Nov. 9, 1998, eff. Jan. 1, 1999). However, under the "new" rules of discovery, effective January 1, 1999, certain information or documents are discoverable, even if prepared in anticipation of litigation. TEX.R. CIV. P. 192.5(c). These include "information discoverable under Rule 192.3 concerning witness statements." TEX.R. CIV. P. 192.5(c)(1). The statements withheld by MCHD fall within the description of witness statements that are not protected by the work product privilege. See Spohn Hosp. v. Mayer, 72 S.W.3d 52, 62 (Tex. App.-Corpus Christi 2001, pet. filed); In re Jimenez, 4 S.W.3d 894, 896 (Tex.App.-Houston [1st Dist.] 1999, orig. proceeding) (witness statements are not "work product" and are generally not protected from discovery). Thus, on January 1, 1999, these four witness statements became discoverable and made subject to Burwell's requests for disclosure. See TEX.R. CIV. P. 194.2(i). Accordingly, MCHD had an affirmative duty to supplement its disclosures reasonably promptly after it discovered the necessity for such a response. See TEX.R. CIV. P. 193.5(b); Ersek, 69 S.W.3d at 271 n. 2.

MCHD further contends that its failure to timely supplement Burwell's requests for disclosure did not unfairly surprise or prejudice Burwell because she knew of Galow's existence as a potential trial witness. The burden of establishing the lack of unfair surprise is on the party seeking to introduce the evidence or call the witness. TEX.R. CIV. P. 193.6(b); Dolenz v. State Bar of Tex., 72 S.W.3d 385, 387 (Tex.App.-Dallas 2001, no pet.). A finding of the lack of unfair surprise must be supported by the record. TEX.R. CIV. P. 193.6(b); Dolenz, 72 S.W.3d at 387.

MCHD contends that since Burwell knew Galow was present at the cafeteria table when she began to discuss the patient's care, Burwell knew that Galow was a potential witness. Further, it asserts Burwell knew that Galow was a potential witness because the hospital's business office manager referred to Galow in a deposition. We find this...