Ramirez v. Ramirez

Citation873 S.W.2d 735
Decision Date03 March 1994
Docket NumberNo. 08-92-00033-CV,08-92-00033-CV
PartiesRichard RAMIREZ, Appellant, v. Irma Chavira Valenzuela RAMIREZ, Appellee.
CourtCourt of Appeals of Texas

Michael R. Wyatt, El Paso, for appellant.

Phillip C. Bowen, Johnson & Bowen, El Paso, for appellee.



KOEHLER, Justice.

We withdraw our opinion of December 29, 1993 and substitute the following opinion in its place. Appellant's motion for rehearing is overruled.

In the trial of a divorce suit, the court entered judgment dividing the real and personal property of the parties based on certain findings made by the jury with respect to the value and character of such property.

In this appeal, the husband complains of the trial court's rulings in allowing several of wife's witnesses to testify, such witnesses not having been properly identified in response to his interrogatories (Points of Error Nos. One through Four); and in excluding the testimony of his expert witness and not allowing him the opportunity to make his bill of exceptions on that excluded testimony (Points of Error Nos. Five and Six). He also asserts that there is insufficient evidence or no evidence to support the jury finding that he had unfairly transferred $27,500 in community estate assets (Points of Error Nos. Seven and Eight), and that the court erred by awarding wife certain community property and a percentage of the value of that property as well, amounting to a double recovery (Point of Error No. Nine).


As part of pretrial discovery, Richard Ramirez (husband), Appellant, had submitted interrogatories to Irma Chavira Valenzuela Ramirez (wife), Appellee, seeking to discover the identities of any person with knowledge of relevant facts. Wife timely answered on June 21, 1991, and then at 4:42 p.m. on Friday, July 19, 1991, supplemented her previous response by adding the names of Raymond C. Cooke, Margie Macias, Adrian Valenzuela, and Abel T. Luna. The case was tried to a jury beginning on Monday, July 22, 1991. In response to husband's motions to exclude the testimony of these four witnesses, the court granted the motion as to Cooke (designated in wife's answer as an expert), but overruled the objection and allowed the other three (designated as fact witnesses) to testify. Additionally, the trial court ruled that wife would be allowed to testify over husband's objection that she had not been listed as a fact witness in response to his interrogatories.

At the conclusion of the trial, the jury made findings as to property values and the character of the property of the parties as community or separate property, upon which the trial court entered its judgment dividing such property between them and in addition, ordered husband to pay to the community estate $27,500 which the jury had found to be the value of unfair transfers by husband of community property, awarding to wife out of such funds $16,500 as her separate property.


In his first four points of error, husband complains that the trial court abused its discretion by admitting without a showing of good cause the testimony of four witnesses who were either not timely identified or not identified at all in response to interrogatories seeking discovery of the identities of all persons with knowledge of relevant facts. As previously stated, the trial court admitted the testimony of three persons who were not identified until late afternoon of the Friday preceding the commencement of the trial on Monday. The court also allowed wife to testify although she had never identified herself as a potential fact witness.

When reviewing an abuse of discretion challenge, we must determine not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions, but rather whether that court acted without reference to any guiding rules and principles or in other words, whether the action of the court was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The fact that the trial court in the exercise of its discretionary authority ruled in a different manner than an appellate judge in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 242. A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989).

In this case, we must look to the Rules of Civil Procedure, and particularly to Rules 166b.6. and 215.5. and recent appellate opinions interpreting this rather dynamic area of discovery law to determine whether the trial court acted with or without reference to any guiding rules and principles. Under Rule 166b.6.a., a party who has previously properly responded to a discovery request is under a duty to supplement not less than thirty days prior to trial, unless the court finds good cause, if he obtains information from which he knows that the response either: (1) was incorrect or incomplete when made or (2) though correct and complete when made is no longer true and complete and the failure to amend would be misleading. TEX.R.CIV.P. 166b.6.a. In the absence of a finding that good cause exists, the automatic sanction for the failure to supplement in a timely manner is the exclusion of the undisclosed witnesses' testimony. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex.1992); TEX.R.CIV.P. 215.5. The trial court may within its discretion determine whether the offering party has met her burden of showing good cause, but the court has no discretion to admit testimony otherwise excluded by the rule without a showing of good cause on the record. Alvarado, 830 S.W.2d at 914; TEX.R.CIV.P. 215.5.

The record in the instant case is devoid of any finding by the trial court or showing of good cause for allowing the three witnesses, who were not disclosed until the Friday before trial, to testify. It was error for the court to allow Margie Macias, Adrian Valenzuela and Abel Luna to testify. The next inquiry is whether the trial court's actions in admitting the testimony constituted reversible error under TEX.R.APP.P. 81(b). We are not to reverse and remand a case for new trial unless the error(s) in question were "reasonably calculated to cause and probably did cause rendition of an improper judgment." Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); TEX.R.APP.P. 81(b). If the evidence of the witnesses was merely cumulative and not controlling on a dispositive issue in the case, we will not ordinarily find reversible error. Gee, 765 S.W.2d at 396. We must review the entire record to determine if the judgment was controlled by the improperly admitted testimony. Id. at 396.

Able Luna testified that real property located at 2400 Wyoming, El Paso, Texas, and in the possession of husband was worth $60,000 to $65,000, contradicting husband, who testified that said property was worth $22,000, but also stated that he had purchased the property in 1989 for $40,000 or $42,000. As the jury found the property to be valued at $40,000, it apparently did not believe the valuation testimony of either witness, instead basing its findings on the purchase price testimony. Any error, therefore, with regard to Abel T. Luna's testimony, probably did not cause rendition of an improper judgment. Gee, 765 S.W.2d at 396.

Adrian Valenzuela, wife's son by a prior marriage, testified that the home located at 10845 Vista Allegre in El Paso, in which he, his brothers, and mother were still living, was fully furnished when he and his parents moved in about eleven or twelve years before the trial. Husband argues that this testimony was harmful because although he admitted that the house was fully furnished when he moved in, he testified (without specificity) that most of the furnishings had been replaced while he lived there, one piece at a time. Inconsistent with his previous testimony, he then stated that "[m]ost of the bedrooms [of the four bedroom house] ... didn't have furniture." Wife testified, as had her son, that the house was completely furnished. Left with no specific testimony on what furnishings had or had not been replaced, the jury after finding that the house itself was 83 percent the wife's separate property and 17 percent community property, found the furnishings to be 68 percent wife's separate property and 32 percent community. We conclude that Adrian Valenzuela's testimony was merely cumulative of his mother's testimony and neither was of much value to the jury.

The third tardily identified fact witness, Maria Margarita Macias, testified regarding gifts husband made to Rosa Macias, his girlfriend. However, husband in his testimony conceded that he and wife had as community property approximately $29,000 in cash; that the money had been spent by the time of trial; that he gave a Blazer vehicle to Rosa Macias; that he and Rosa Macias had twice gone on trips together, once to Philadelphia and once to Chicago, for four or five days at a time; and that he made numerous unrecorded cash sales in his business. The jury, in making its findings, may have found Maria Margarita Macias' abbreviated testimony persuasive, nonetheless, husband's lengthy testimony by itself was sufficient evidence to support the jury's finding that he had made unfair transfers requiring him to reimburse the community estate in the amount of $27,500. Thus we conclude that Maria Margarita Macias' testimony did not result in substantial prejudice to husband's rights and probably did not cause rendition of an improper judgment. Husband's first three points of error are overruled.

In his fourth point, husband asserts that the court erred by allowing wife to testify because she neither identified herself as a witness in her answers to...

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