COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-069-CV
KATHLEEN DIDUR-JONES APPELLANT
V.
FAMILY DOLLAR, INC. APPELLEE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In seven points, Appellant Kathleen Didur-Jones asserts that the trial
court erred by granting Appellee Family Dollar, Inc.’s motion to strike her
pleadings on damages and granting a take nothing judgment against her. We
affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
In February 2005, Didur-Jones allegedly fell in a Family Dollar store
because of merchandise that had been left on the floor. Nearly two years later,
she filed a premises liability claim against Family Dollar, claiming that as a result
of the fall, she had been “injured and ha[d] been forced to incur reasonable and
necessary medical expenses and ha[d] undergone pain and suffering . . . .”
On June 5, 2007, Family Dollar sent Didur-Jones a request for disclosure
asking, among other things, for Didur-Jones to disclose the amount and method
of calculating economic damages. See Tex. R. Civ. P. 194.2(d). Approximately
one month later, Didur-Jones filed a response, in which she did not disclose the
amount or method of calculating damages but instead reserved the right to
supplement her response, stating that “all needed information has not been
supplied to this office at this time and plaintiff has not completed medical
treatment as of this date.”
The case was initially set for February 19, 2008, but the trial court
granted Didur-Jones’s first motion for continuance and reset the trial for June
23, 2008. The parties filed an agreed scheduling order in which they agreed
that pre-trial discovery would close on May 23, 2008; however, Didur-Jones
did not supplement her response regarding the amount or calculation of
economic damages by the May 23 deadline. Instead, on June 6, 2008, she
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filed a second motion for continuance. The trial court granted the motion and
reset the trial for December 1, 2008.
On November 19, 2008, Family Dollar filed a motion to strike Didur-
Jones’s evidence of damages, relying on three grounds: (1) Didur-Jones failed
to adequately respond to Family Dollars’s request for disclosure on the amount
and method of calculating economic damages; (2) Didur-Jones had not filed pre-
trial affidavits as provided for by section 18.001 of the civil practice and
remedies code and therefore could not establish that her medical expenses were
reasonable and necessary; and (3) Didur-Jones’s medical records were
inadmissible because they had not been properly authenticated under Texas
Rule of Evidence 902(10). On November 21, 2008, Didur-Jones submitted a
supplemental response to Family Dollar’s request for disclosure. Family Dollar
filed a motion to strike her supplemental response on the ground that it was
untimely.
On November 26, 2008, Didur-Jones filed her third motion for
continuance and a reply to Family Dollar’s motions to strike. In her reply, Didur-
Jones argued that the only economic damages involved in the case were
medical bills, and that, although she had not formally supplemented her reply
to Family Dollar’s request for disclosure, she had mailed or faxed to Family
Dollar all medical bills as they were received.
3
At the November 26, 2008 hearing, Family Dollar presented arguments
that Didur-Jones’s economic damages evidence should be excluded on the
grounds in its motions, as well as under rule of civil procedure 193.6.
Following the hearing, the trial court denied Didur-Jones’s third motion for
continuance and granted both of Family Dollar’s motions to strike. When the
case was called for trial on December 1, 2008, Didur-Jones announced “not
ready,” and the trial court entered a take nothing judgment in favor of Family
Dollar. This appeal followed.
III. Exclusion of Evidence
Didur-Jones complains that the trial court abused its discretion by striking
her pleadings on damages and granting a take nothing judgment. She asserts
that the trial court did this by imposing a discovery sanction that was more
severe than necessary without first imposing a lesser sanction or first
determining the prejudice to Family Dollar, and that the sanction imposed had
no direct relationship with the conduct to be sanctioned. She also argues that
the trial court abused its discretion if the sanction was based on the failure to
file affidavits under section 18.001 of the civil practice and remedies code, and
when “it punished the plaintiff with a death penalty sanction for her attorney’s
misconduct without any consideration as to whether she herself was in any
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way responsible for the discovery violation and there was no evidence that she
was.” 2
As an initial matter, we note that although Didur-Jones claims that her
pleadings on damages were stricken and that this constituted a “death penalty
sanction,” this did not occur. Generally, a death penalty sanction occurs
through striking pleadings and dismissing an action or rendering a default
judgment—in short, the preclusion of a decision on the merits. TransAm.
Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918–20 (Tex. 1991). An
examination of the motions to strike, 3 responses, replies, and the record of the
hearings on the third motion for continuance and the bench trial makes clear
2
… The trial court’s orders on the motions to strike merely state that the
court, “after considering [the motion] and after considering arguments of
counsel, finds that the Motion is well taken and should be GRANTED.”
3
… Family Dollar’s original motion to strike specifically references its
request that Didur-Jones disclose “the amount of and method of calculating
economic damages,” and complains that her only response was that she
reserved the right to supplement. Family Dollar’s motion to strike the first
supplemental response to request for disclosure argues that the supplemental
response should be excluded for failure to be made “reasonably promptly,”
complaining that
with only 10 days to go before trial, Family Dollar has now received
an Accent medical expenses printout which appears to represent
Plaintiff’s medical expenses along with a few inexplicable generic
printouts. To allow [Didur-]Jones to admit evidence of these
alleged damages at this late stage would clearly constitute the very
“trial by ambush” Rule 215 is aimed at preventing.
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that the trial court struck only the economic damages evidence. 4 The court
neither struck her pleadings nor her non-economic damages.
A. Standard of Review
We review a trial court’s evidentiary rulings for an abuse of discretion.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). To
determine whether a trial court abused its discretion, we must decide whether
the trial court acted without reference to any guiding rules or principles; in other
words, we must decide whether the act was arbitrary or unreasonable. Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). We must uphold the trial
court’s evidentiary ruling if there is any legitimate basis in the record for the
ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998).
B. Discovery Rule 193.6
At the hearing on Didur-Jones’s motion for continuance, one of Family
Dollar’s arguments for excluding Didur-Jones’s economic damages evidence
was that the trial court could exclude the evidence under rule of civil procedure
4
… After the trial court made its ruling at the continuance hearing, Didur-
Jones’s attorney made the following request: “Your Honor, respectfully, I have
to say that since about 90 percent of my damages is of this lady’s medical bills,
we cannot try this case. I would respectfully request a judgment be entered
against the—against our client so that we can appeal.”
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193.6. Didur-Jones appeared to argue in response that rule 193.6’s exceptions
for good cause, lack of unfair prejudice, and lack of surprise applied. Therefore,
we will first consider Didur-Jones’s points under rule 193.6. See, e.g., F & H
Invests., Inc. v. State, 55 S.W.3d 663, 668–69 (Tex. App.—Waco 2001, no
pet.) (analyzing motion for sanctions under rule 193.6 when both parties argued
the motion as if it were an objection to the introduction of evidence under rule
193.6, the movant requested the relief available under rule 193.6, and the
nonmovant attempted to use the defenses available under rule 193.6).
Under rule 193.6, discovery that is not timely disclosed is inadmissible as
evidence. Tex. R. Civ. P. 193.6(a); Fort Brown Villas III Condo. Ass’n, Inc. v.
Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). “[I]t 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). The exclusion of
evidence for failure to respond is automatic unless one of rule 193.6’s
exceptions applies. Tex. R. Civ. P. 193.6(a)(1), (2); see, e.g., Patton v. Saint
Joseph’s Hosp., 887 S.W.2d 233, 237 (Tex. App.—Fort Worth 1994, writ
denied) (applying former rule 215(5), the predecessor to rule 193.6).
Furthermore, the cautionary factors set out in TransAmerican Natural Gas Corp.
apply to discretionary sanctions, not to the automatic sanctions under rule
193.6. See Tex. R. Civ. P. 193.6; TransAm. Natural Gas Corp., 811 S.W.2d
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at 917; Patton, 887 S.W.2d at 238; see also Am. Flood Research, Inc. v.
Jones, 192 S.W.3d 581, 582–83 (Tex. 2006) (applying the abuse of discretion
standard to the imposition of sanctions under rule 215).
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 unless the court finds that (1) there was good
cause for the failure to timely disclose or (2) the failure will not unfairly surprise
or prejudice the other parties. Tex. Mun. League Intergovernmental Risk Pool
v. Burns, 209 S.W.3d 806, 817 (Tex. App.—Fort Worth 2006, no pet.) (citing
Tex. R. Civ. P. 193.6(a)). “The salutary purpose of [this rule] is to require
complete responses to discovery so as to promote responsible assessment of
settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co., 830
S.W.2d 911, 914 (Tex. 1992) (applying former rule 215(5), the predecessor to
rule 193.6). The burden of establishing good cause or lack of unfair surprise
or prejudice is on the party seeking to introduce the evidence. Tex. R. Civ. P.
193.6(b); IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 202 (Tex.
App.—Fort Worth 2005, no pet.). The trial court has discretion to determine
whether the offering party has met its burden. Burns, 209 S.W.3d at 817
(citing Alvarado, 830 S.W.2d at 914).
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Didur-Jones argued at the hearing that because her treatment was
ongoing, it was “impossible” to say what her economic damages were, and that
whenever we got anything, we didn’t—we did not file a formal
amendment. But whenever we got anything, we faxed it over to
opposing counsel. So they’ve actually been furnished with
everything we have.
Now the—the treating doctor . . . who—who we couldn’t get
his deposition, is about 90 percent of the damages. He’s the one
that did the two operations and then the big items of damage in
this case. I planned to prove up his bill when we took his
deposition. We never took his deposition, although we had agreed
to set it in September. . . . We held on taking his deposition as
long as possible so that these surgeries could be completed. . . .
Now, we could have taken his deposition earlier, but what
could he have said? . . . I’d have to re-depose him when the second
corrective surgery was done and then re-depose him again before
the lumbar surgery was done.
Now, I thought the lumbar surgery would have done—been
done since, but I can’t hurry these doctors. . . . We have not filed
formal—formal supplementation, but if I filed a formal
supplementation, I would have to say, as I did, that economic
damages are still undetermined.
Family Dollar responded by stating:
Plaintiff has indicated it was impossible to timely disclose their
damages. . . . In their late supplementation on November 21st of
2008, plaintiff does—did fax over this. This is the first time we’ve
seen this—this up-to-date accounting of her alleged medical
damages, which show that they have been ongoing; therefore,
[they] were clearly available to plaintiff to disclose to defendant
at—at any time, which they—they never were done. Therefore,
the—the argument it is impossible to put forth plaintiff’s economic
damages is not—not correct, Your Honor.
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Therefore, as of each and every closing—each—each
discovery deadline, the only damages that were put before the
Court, informally provided, I should say, to defendant, was the
amount of $12,499. 5 These other—the other estimates, like I said,
don’t even reference plaintiff, and it—and it really [does not] give
us anyway to—it forces the defendant to speculate as to what
potential damages plaintiff would be claiming.
It is undisputed that Didur-Jones failed to formally supplement her
response to the portion of Family Dollar’s request for disclosure seeking the
amount and method of calculating economic damages. See Tex. R. Civ. P.
194.2(d); see also Tex. R. Civ. P. 193.5(b) (“An amended or supplemental
response must be in the same form as the initial response.”). And there is
nothing in the record to show why economic damages incurred up to the time
of trial could not have been provided in response to Family Dollar’s request for
disclosure, despite Didur-Jones’s argument that she was still under treatment.
Based on the record before us, we cannot say that the trial court abused
its discretion by determining that Didur-Jones failed to meet her burden of
establishing good cause or lack of unfair surprise or prejudice. See Tex. R. Civ.
P. 193.6(b); Burns, 209 S.W.3d at 817; IAC, Ltd., 160 S.W.3d at 202. And
because the exclusion of evidence under rule 193.6 is automatic, we need not
5
… Didur-Jones sought “monetary relief aggregating $100,000.00 or
more, excluding costs, pre-judgment interest and attorney fees” in her first
amended original petition.
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address Didur-Jones’s complaints regarding the exclusion of the same evidence
pursuant to section 18.001 of the civil practice and remedies code or rule of
civil procedure 215’s discretionary “death penalty” sanctions. See Tex. R. App.
P. 47.1.
IV. Conclusion
We affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.
DELIVERED: November 19, 2009
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