Smith v. Southwest Feed Yards

HECHT, Justice, concurring in the judgment.

I agree that the district court should not have excluded defendant’s testimony at trial in this case, but my reasons for reaching this conclusion are somewhat different from the Court’s.

The Court holds that defendant showed good cause for admission of his. own testimony because: (1) his answers to a single, short set of interrogatories (nine in all) in a simple lawsuit (on an open account) showed that he was a person with knowledge of relevant facts; (2) he identified himself as a witness in a pretrial order; and (3) plaintiff was not surprised. Reduced to basics, these circumstances amount only to inadvertence and lack of surprise, neither of which, standing alone, constitutes good cause. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992). The defendant has not shown “a failure to comply with discovery in difficult or impossible circumstances” which we have suggested is necessary for good cause. Id. Conceptually, therefore, the Court’s decision may be argued to expand good cause beyond the strict bounds previously prescribed. Practically, however, it does so only slightly. It is intended to be, and is, a very narrow holding, restricted by the facts of this case. The Court is careful to say that good cause is not shown simply by the fact that the unidentified witness is a party (“A party cannot disregard procedural rules and still *94insist upon an absolute right to testify in all circumstances”, ante, at 90), or that he is identified somewhere in discovery (“Certainly a more obscure or indirect identification than that involved here could permit exclusion of a party witness”, ante, at 91).

Because the Court has limited its holding, I do not share the dissent’s view that today’s decision represents a significant departure from our prior cases. The Court’s opinion argues against this view, relying as it does on two of those cases, Alvarado and Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669 (Tex.1990), which in turn relied on others. I do agree with the dissent, however, that if good cause is not strictly defined and applied, Rule 215(5), Tex.R.Civ. P., will quickly become unworkable. “The salutary purpose of Rule 215.5 [215(5)] is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush.” Alvarado, 830 S.W.2d at 914. The more exceptions are made to the simple requirement that litigants identify expert witnesses and persons with relevant knowledge, the more the purpose of the rule is impaired. The argument that an exception should be made for parties’ identification of themselves and one another because everyone expects a party to testify in his own case does not address the problems with institutional or corporate parties, class actions, and multi-party lawsuits. If an exception is to be recognized at all, it must be as narrow as the one in this case.

It is certainly not unduly burdensome to identify parties who intend to testify as experts or who have knowledge of relevant facts. Yet in the past two years we have received applications for writ of error in seven cases besides this one in which a party or a party’s representative called to testify at trial was not timely identified in answer to interrogatories. E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63 (Tex. App. — Texarkana 1990, writ denied) (No. D-0225); NCL Studs, Inc. v. Jandl, 792 S.W.2d 182 (Tex.App. — Houston [1st Dist.] 1990, writ denied) (No. D-0252); Henry S. Miller, Co. v. Bynum, 797 S.W.2d 51 (Tex. App. — Houston [1st Dist.] 1990, writ granted) (No. D-0494); J.N. Browning Oil Co. v. Sealy, No. 11-90-00143-CV (Tex.App.— Eastland, May 23, 1991, writ pending) (not designated for publication) (No. D-1420); Millman v. Howell, No. 05-91-00015-CV, 1991 WL 119253 (Tex.App. — Dallas, July 2, 1991, writ pending) (not designated for publication) (No. D-1652); Van Horn v. A. Plastino, Ltd., No. B14-90-00728-CV, 1991 WL 127367 (Tex.App. — Houston [14th Dist.], July 11, 1991, writ denied) (not designated for publication) (D-1667); Hogan v. Credit Motors, Inc., 827 S.W.2d 392 (Tex. App. — San Antonio 1992, writ pending) (D-2327). I continue to believe that the difficulty with the application of Rule 215(5) lies not in determining good cause but with the single, severe sanction it prescribes. The rule would function better if good cause remained narrow, and sanctions were mandatory, but the range of sanctions was broader to give the trial court more discretion in distinguishing between inadvertence which does not surprise an opponent and abuse of the discovery process.

For now, however, Rule 215(5) must be applied as written. But the limits on the imposition of discovery sanctions which we recognized in TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991), and Braden v. Downey, 811 S.W.2d 922 (Tex.1991), apply equally to Rule 215(5). That rule’s single sanction, exclusion of evidence, cannot be imposed to effectively deny a party’s claim or defense unless “a party has so abused the rules of procedure, despite the imposition of lesser sanctions, that the party’s position can be presumed to lack merit and it would be unjust to permit the party to present the substance of that position before the court.” Id. at 929, citing TransAmerican. Even when the effect of the sanction is not so drastic, it should not be imposed to work an injustice. The rule does not require such a result, and there are effective alternatives. As we observed in Alvarado, instead of excluding evidence, the trial court can postpone trial to allow discovery to be supplemented and punish the offending party appropriately. 830 S.W.2d at 915.

*95Rather than expand good cause even as little as the Court does today, I would hold that the exclusion of evidence in this case violated the rule of TransAmerican and Downey. Without his own testimony, the defendant could not present a viable defense. As a result, the plaintiff recovered a judgment not because it had a meritorious claim — although its claim may indeed have been meritorious — but because the defendant overlooked identifying himself in answer to interrogatories. This is precisely the result that TransAmerican condemns: “Discovery sanctions cannot be used to adjudicate the merits of a party’s claims or defenses unless a party’s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.” 811 S.W.2d at 918.

I therefore agree that the judgment of the court of appeals should be reversed and the case remanded to the district court for a new trial. I am troubled that the Court accomplishes this result by expanding good cause only for individual litigants and only in simple cases. This discrimination in the application of the rules in favor of some parties and against others is not a good precedent. At least the consequences here are minimal.