Williams v. Crier

Decision Date15 July 1987
Docket NumberNo. 05-87-00606-CV,05-87-00606-CV
Citation734 S.W.2d 190
PartiesRita Diann WILLIAMS, et al., Relators, v. The Honorable Catherine CRIER, Judge, 162nd District Court, Dallas County, Texas, Respondent.
CourtTexas Court of Appeals

John E. Phillips, Lloyd E. Ferguson, Mark M. Donheiser, Dallas, for relators.

Henry Stollenwerck, Dallas, for respondent.

Before ENOCH, C.J., and BAKER and McCRAW, JJ.

ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS

BAKER, Justice.

Relators, Rita Diann Williams and Elizabeth Williams Fountain, seek a writ of mandamus compelling the Honorable Catherine Crier, Judge of the 162nd Judicial District Court of Dallas County, Texas, to reverse her order of May 7, 1987, striking three of relators' expert witnesses and prohibiting their testimony in pending trial court case No. 85-9722-I. Under the record before us, we find the trial court clearly abused its discretion and grant relators' petition for writ of mandamus.

Relators brought a suit against Amarco Resources Corporation and Westdale, Inc., the Real Parties in Interest (defendants), for damages that relators alleged were incurred due to the death of the husband of relator Rita Diann Williams who was killed while working on a "workover rig" owned and operated by the defendants.

The original suit in this matter was filed in July 1985. The first trial setting of the case was in July 1986, but the matter was not tried at that time. Subsequent to that time, the case was reset for trial on February 9, 1987, with a discovery cutoff date of January 10, 1987, established. Prior to the January 10, 1987 cutoff date, the parties took a substantial number of depositions including approximately seven depositions of relators' designated expert witnesses. The trial court was not able to reach the case for trial on the February 9 setting and, accordingly, reset the case on its own motion. By letter order dated February 25, 1987, the parties were notified by the court that the case was reset for trial for June 15, 1987. This letter order noticed the parties that the discovery cutoff date was May 16, 1987. On May 4, 1987, and within the time specified for the discovery cutoff date, the relators supplemented their answers to defendants' interrogatories and designated the names of three additional individuals whom relators intended to call as expert witnesses and noticed the defendants of proposed depositions for each of these three individuals. Defendants filed a motion to quash the notice of depositions and for protective order with the trial court. Defendants' motion asserted the grounds that the three expert witnesses designated by the relators would merely provide cumulative evidence of the testimony to be elicited from the individuals previously designated by relators as their expert witnesses or, alternatively, that even though the designation of the three new witnesses was within the time frame of the discovery cutoff date established by the court's letter order of February 25, 1987, that said designation was not in conformity with Texas Rule of Civil Procedure 166b(5)(b) requiring the supplementation of interrogatories and the designation of expert witnesses "as soon as practical." A hearing was held on May 7 at which time the trial court sustained the defendants' motion and entered an order striking the three named individuals as witnesses for Relators.

Relators assert this writ of mandamus petition on the grounds that the trial court abused its discretion in striking the witnesses and that the order should be overturned.

Both parties agree that a writ of mandamus will not issue unless a clear abuse of discretion is shown and that the appellate court should not intervene to control incidental trial court rulings when there is an adequate remedy by appeal. See Jampole v. Touchy, 673 S.W.2d 569, 572 (Tex.1984) (cited by both parties to this action). All parties agree that a clear abuse of discretion occurs when the trial court's actions amount to fraud, caprice, or is a purely arbitrary decision without reason. See McMullen v. Yates, 697 S.W.2d 500, 502 (Tex.App--San Antonio 1985, orig. proceeding) (cited by both parties to this action).

We have been furnished with a transcript of the proceedings before the trial court on the date that the motion for protective order was heard and the order complained of entered. This record reflects that there was some discussion between the attorneys and the court prior to the time that the court reporter began to record the hearing Be that as it may, on consideration of this matter now before the court, we are limited to the record before us. This record reflects that apparently no individual was sworn and testified as a witness, and the record consists of argument by counsel for the parties to the court concerning their respective positions on the issue of the motion for protective order. In response to the trial court's inquiry, the defendants herein alleged to the court that their grounds for the request were based upon the fact that the three witnesses now designated by the plaintiff as experts would be cumulative and, secondarily, that the designation of the three witnesses on May 4 failed to comply with the provisions of Rule 166b(5), Tex.R.Civ.P., in that they were not designated "as soon as practical." Defendants' counsel at that time cited to the court as authority for striking expert witnesses the case of Builder's Equipment Company v. Onion, 713 S.W.2d 786 (Tex.App.--San Antonio 1986, orig. proceeding). Defendants' counsel took the position that the facts in the instant case were similar to the Builder's Equipment case and that these facts demonstrated a lack of due diligence on the part of Relators in designating the witnesses. Relators' counsel, in response to the court's query, took the position that he had designated these three additional witnesses as soon as he located them and as soon as he knew that they were agreeable to testifying in the case.

Following the response by relators' counsel, the court stated, "Okay. Based upon the Builder's Equipment case, the court finds that plaintiff has not used due diligence in searching for new witnesses, and the motion to strike or quash those experts is granted." The hearing was closed at that time, and a written order to that effect was entered on the same date, May 7, 1987.

This Court may direct a writ of mandamus to issue against a trial court to correct a clear abuse of discretion in a discovery proceeding. Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977). This is true not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court improperly limits or...

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8 cases
  • City of Port Arthur v. Sanderson, 09-91-063
    • United States
    • Texas Court of Appeals
    • June 13, 1991
    ...amounts to an emasculation of a party's defense, then appeal is not an adequate remedy and mandamus will lie. See also Williams v. Crier, 734 S.W.2d 190 (Tex.App.--Dallas 1987, orig. proceeding). The courts of appeal are divided on this issue. Forscan Corp. v. Touchy, 743 S.W.2d 722, 724 (T......
  • First Title Co. of Waco v. Garrett
    • United States
    • Texas Court of Appeals
    • July 31, 1990
    ...Builder's Equipment Co. v. Onion, 713 S.W.2d 786, 788 (Tex.App.--San Antonio 1986, no writ). That discretion can be abused. Williams v. Crier, 734 S.W.2d 190, 193 (Tex.App.--Dallas 1987, no writ). However, the record does not reflect that the court clearly abused its discretion when it refu......
  • Mentis v. Barnard
    • United States
    • Texas Supreme Court
    • February 2, 1994
    ...also First Title Co. of Waco v. Garrett, 802 S.W.2d 254 (Tex.App.--Waco 1990), rev'd on other grounds, 860 S.W.2d 74 (1993); Williams v. Crier, 734 S.W.2d 190 (Tex.App.--Dallas 1987, orig. proceeding [leave denied] The plain wording of Rule 166b(6)(b) indicates that the duty to designate at......
  • Humana Hosp. Corp., Inc. v. Casseb, 04-90-00572-CV
    • United States
    • Texas Court of Appeals
    • April 3, 1991
    ...of eight experts and limitation of testimony of eight other experts "emasculated" defense of lawsuit and was reviewable); Williams v. Crier, 734 S.W.2d 190 (Tex.App.--Dallas 1987, orig. proceeding) (reviewing by mandamus the pre-trial exclusion of three experts). Another court has refused t......
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