Smith v. Southwest Feed Yards, Ltd.

• Decision Date: 18 June 1991
• Docket Number: No. 07-90-0047-CV,07-90-0047-CV
• Citation: 811 S.W.2d 717
• Parties: Arnold T. SMITH, Appellant, v. SOUTHWEST FEED YARDS, LTD., Appellee.
• Court: Texas Court of Appeals

Page 717

811 S.W.2d 717

Arnold T. SMITH, Appellant, v. SOUTHWEST FEED YARDS, LTD., Appellee.

No. 07-90-0047-CV.

Court of Appeals of Texas Amarillo.

June 18, 1991.

Rehearing Overruled Aug. 6, 1991.

J. Christopher Byrd, Tulsa, Okl., for appellant.

Rex W. Easterwood, Hereford, for appellee.

Before REYNOLDS, C.J., and DODSON and POFF, JJ.

REYNOLDS, Chief Justice.

By this appeal, we are required to determine whether, and we hold that, the trial court correctly excluded a party's testimony when, without good cause, he was not disclosed as a witness in response to a discovery interrogatory. Affirmed.

Southwest Feed Yards, Ltd. (Southwest) sued Arnold T. Smith (Smith) to recover upon an open account for custom feeding Smith's cattle. In answering Southwest's interrogatory, authorized by rule 166b, paragraph 2(d), Texas Rules of Civil Procedure, ¹ requesting the name and address of each person, including experts, having any knowledge or relevant facts related to the account, Smith did not list his name among those he identified. Nor did he supplement his answer at least thirty days prior to trial to identify himself. See rule 166b, paragraph 6. However, seven days before trial and in compliance with the court's pretrial order, Smith did notice his intent to appear as a witness.

Upon Smith's attempt to testify, Southwest objected on the ground that he had not been listed in the original answer or in any update to the written interrogatories and request for production. The objection was grounded upon paragraph 5 of rule 215, which provides that:

5. Failure to Respond to or Supplement Discovery. A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.

In this connection, the sanction for failure to comply with the rule is the automatic exclusion of the unidentified witness' testimony. Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex.1990).

Smith argued for admission of his testimony on two theories. First, he contended he showed a good cause exception to rule 215, paragraph 5 in that there would be no surprise to the other side because of his compliance with the pretrial order; that he had knowledge of facts relevant to the case; and that the interrogatory had been answered in the belief that it pertained to people "in addition to the defendant." Second, he contended that, as the defendant, he had an absolute right to testify.

The trial court found that, even though Smith had complied with the pretrial orders and Southwest could not claim surprise, the omission of his name in response to the interrogatory, which was not supplemented at least thirty days before trial, was cause for exclusion of his proffered testimony. Smith timely preserved his testimony by a bill of exception.

The jury returned a verdict for Southwest, which was accepted by the trial court. The court rendered judgment accordingly, from which Smith has perfected this appeal.

By two points of error, Smith contends the trial court (1) abused its discretion by excluding his testimony because he demonstrated good cause for its admission, and (2) erred in excluding his testimony because, as a matter of law, he had the right to testify in his own defense. The points will be addressed in inverse order.

Smith represents that notwithstanding his failure to list himself as a person with knowledge of relevant facts, he, as a party to the action, had an absolute right to testify in his own behalf. Both Smith and Southwest submit that there is no Texas appellate decision speaking to the question whether a party, generally presumed to have knowledge of relevant facts, is or is not precluded from testifying if he is not identified as a potential witness in response to a proper discovery interrogatory. Consequently, each relies on authorities from other states to support their respective positions that a party is not bound by, or is subject to, rule 166b, paragraph 2(d). However, we are not persuaded to rely on out-of-state authorities for two reasons.

First, none of the opinions in the cited out-of-state authorities reveals that the decisions were made with reference to a pretrial discovery method corresponding to the Texas rules of discovery, which were designed as a comprehensive system for pretrial discovery of evidentiary facts relating to a controversy. 2 R. McDonald, Texas Civil Practice in District and County Courts § 10.02 (rev. 1982). Indeed, when rule 215 was promulgated to authorize sanctions for abuse of discovery, the rule not only extended beyond prior Texas practice, but beyond then current federal practice. Kilgarlin and Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary's L.J. 767, 769 (1984).

Second, one Texas intermediate appellate court has twice answered the question, each time agreeing with Smith's view. In Henry S. Miller Co. v. Bynum, 797 S.W.2d 51 (Tex.App.--Houston [1st Dist.] 1990 writ granted), the principal party plaintiff, Bynum, whose deposition had been taken, was not listed in response to an interrogatory requesting the name, address, and telephone number of persons who had knowledge of facts that were relevant to the issues in the suit. Over the objection that Bynum had not been listed in the response, the trial court permitted Bynum to testify as a fact witness, but not as an expert witness. In passing on the question, a majority of the three-justice panel, stating that a finding of "good cause" was implicit in the trial court's ruling, found no abuse of discretion by the trial court, reasoning that "it was quite obvious to all concerned that Bynum was a 'potential' party witness who had 'knowledge of relevant facts.' He was the principal party plaintiff and an extensive deposition had been taken of him concerning the claims he asserted against Miller in the suit." At 58.

Shortly thereafter, the appellate court reached the same decision in NCL Studs, Inc. v. Jandl, 792 S.W.2d 182 (Tex.App.--Houston [1st Dist.] 1990, writ denied). In Jandl, NCL Studs, Inc. sought to hold Jandl personally liable on promissory notes, with guarantees, she had signed. The trial court found that Jandl could testify even though she was not identified as a witness in response to an interrogatory asking her to identify the witnesses she planned to call to testify at the trial. On appeal from a judgment rendered for Jandl, NCL Studs, Inc. challenged the allowance of Jandl's testimony. The dissenting justice in Bynum, who expressed the belief that there is no exception to the unidentified witness rule for parties, but who felt compelled to follow the precedent of Bynum, ² held for a different three-justice panel that Jandl's status as a party to the suit was good cause to permit her to testify as an unlisted witness. Id. at 186.

In both the Bynum and Jandl courts' affirmance of the admission of a party's testimony for good cause there is, whether intended or not, the unwritten ruling that a party is not exempt from the disclosure required by rule 166b, paragraph 2(d). Otherwise, there would have been no need to reach the question of good cause.

Nevertheless, on the rationale now expressed, we disagree with the First Court's holding in Bynum and Jandl and decline to follow it. In doing so, we observe, more briefly than did the dissent in Bynum, that the majority's reasoning for admitting Bynum's testimony has not passed the good cause test, for good cause is not demonstrated by merely showing that the identity of the potential witness was known to all parties, or that the witness' deposition had been taken, Sharp v. Broadway Nat. Bank, 784 S.W.2d at 671, or that the witness possessed peculiar knowledge of relevant facts. Clark v. Trailways, Inc., 774 S.W.2d 644, 646 (Tex.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1028 (1990). Moreover, we consider the "writ denied" in Jandl to be of no moment; it cannot denote the Supreme Court's affirmance of the holding, because Jandl, having been adjudged personally liable on the promissory notes by the appellate court, would not have raised the question in her application for writ of error.

Pretrial discovery proceedings have as their aim and purpose the administration of justice by allowing the parties to obtain the fullest knowledge of issues and facts prior to trial, West v. Solito, 563 S.W.2d 240, 243 (Tex.1978), "so that disputes may be decided by what the facts reveal, not by what facts are concealed." Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984). To this end, rule 166b, paragraph 2(d) provides that a party may obtain discovery of any potential party and of persons having knowledge of relevant facts. ³ The rule enforces a party's right "to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory." Sharp v. Broadway Nat. Bank, 784 S.W.2d at 671.

Significantly, rule 166b, paragraph 2(d) itself does not exempt an actual party to the litigation from its scope, and rule 215, paragraph 5 does not provide that party status is good cause to excuse disclosure. If either an exemption from disclosure or good cause for nondisclosure were intended for one who is a party, it could, and surely would, have been stated in the rule(s). Absent a manifestation of that intent, it is certain that enforcing the parties' compliance with the rules of discovery serves to obtain the proper objective of the rules of civil procedure, i.e., "to obtain a just, fair, equitable and impartial adjudication of the...