Beamon v. O'NEILL

865 S.W.2d 583, 1993 WL 472502
CourtCourt of Appeals of Texas
DecidedOctober 7, 1993
DocketB14-93-0608-CV
StatusPublished
Cited by8 cases

This text of 865 S.W.2d 583 (Beamon v. O'NEILL) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beamon v. O'NEILL, 865 S.W.2d 583, 1993 WL 472502 (Tex. Ct. App. 1993).

Opinion

OPINION

SEARS, Justice.

Relators, Charles and Sharon Beamon, petition this Court to mandamus Respondent, The Honorable Eileen F. O’Neill, to vacate her orders striking Relator’s expert witnesses, quashing their notices of depositions, and denying their motion to compel an independent medical examination of the Real Party in Interest, Wade Fielding. We conditionally grant the writ.

The underlying suit is one for personal injuries, allegedly sustained by the Real Party in Interest during a boating accident. The Real Party in Interest filed suit against the Relators on July 2, 1992. Relators answered with a general denial and that the injuries, if any, were the result of a preexisting condition.

On October 9,1992, the trial court mailed a “joint case information questionnaire” to both parties. The Court noted that it would use the parties’ responses “either to enter a docket control order or to hold a scheduling conference.” On November 9,1992, Relators responded to the questionnaire. In the questionnaire, Relators agreed to March 22, 1993 as a proposed pre-trial cutoff date for the designation of experts.

On December 2,1992, the trial court issued its Docket Control Order. The Order reads:

Docket Control Order
*NOTE: If an asterisk is shown, the date is governed by Texas Rules of Civil Procedure.
1. 2-08-93 Joinder. All parties shall be joined by this date. The party joining an additional party must provide the new party with a copy of this order.
2a. 3-22-93 EXPERTS must be designated by plaintiff(s) by this date, b. (*) EXPERTS must be designated by all other parties by this date.
NOTE: Expert designations must be written and include the expert’s name, address, area of expertise and a brief summary of the expert’s opinions.
3. 6-07-93 PLEADINGS. Pleadings must be amended or supplemented by this date.
4. 6-07-93 DISCOVERY. Discovery requests must be made in writing and filed with the court by this date.
5. 7-07-93 PRE-TRIAL CONFERENCE. Time: 1:30 p.m..
6. 7-12-93 TRIAL. If the case is not assigned to trial by the second Friday after this date, the trial date will be reset.

No other docket control orders were entered, and no subsequent written agreements to change any of the pre-trial discovery dates were filed by the parties.

On May 20,1993, Relators filed a motion to compel an independent medical examination of the plaintiff, and on June 7, 1993, (thirty-five days before trial), Relators designated their five expert witnesses, and noticed the deposition of one of those experts. The trial court denied the request for a medical examination on June 7,1993, and on June 21, 1993, quashed Relators’ deposition and struck all of *585 Relators’ expert witnesses. It is from these two orders that Relators petition this Court for relief.

A writ of mandamus will issue only to correct a trial court’s clear abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court clearly abuses its discretion if “it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Pope v. Davidson, 849 S.W.2d 916, 919 (Tex.App.—Houston [14th Dist.] 1993, orig. proceeding), citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). An appeal is considered inadequate if: (1) the appellate court would not be able to cure the trial court’s error; (2) the party’s ability to present a viable claim or defense is severely compromised; or (3) the missing discovery cannot be made a part of the appellate record. Walker at 843. The Beamons maintain that the trial court’s striking of them expert witnesses and quashing one witness’ deposition amount to a clear abuse of discretion.

Tex.R.Civ.P. 166b(6)(b) provides that a party must designate an expert witness whom it expects to call at trial, as soon as practical, but in no event less than thirty days before trial. In the absence of a specific court order stating otherwise, the deadline for the designation of experts is 30 days before trial. See, Browne v. Las Pintas Ranch, Inc., 845 S.W.2d 370, 374 (Tex.App.—Houston [1st Dist.] 1992, no writ); Pedraza v. Peters, 826 S.W.2d 741, 744 (Tex.App.—Houston [14th Dist.] 1992, no writ); Peters v. Moore, 835 S.W.2d 764 (Tex.App.—Houston [14th Dist.] 1992, orig. proceeding); and Mother Frances Hospital v. Coats, 796 S.W.2d 566 (Tex.App.—Tyler, 1990, orig. proceeding). This Court does not need to address the issue of whether or not Relators’ designations were “as soon as practical,” because the Respondent’s order specifically states that Relators experts were struck and deposition request quashed because they were not made by the date specified in the Docket Control Order. The Court’s order states that “all parties understood the Court’s December 2, 1992 Docket Control Order ... required the Defendants to have designated their experts by March 22, 1993.”

Docket control orders “are the only notice to attorneys of matters crucial to the outcome of litigation.” Loffland Brothers Co. v. Downey, 822 S.W.2d 249, 250 (Tex.App.—Houston [1st Dist.] 1991, orig. proceeding). In the absence of a subsequent Rule 11 agreement or court order changing the pretrial dates, the court’s docket order controls all discovery dates. This particular docket control order noted that plaintiffs’ experts were to be designated by March 22,1993, but that all OTHER PARTIES’ experts were to be designated within the rules of civil procedure. Therefore, Relators’ expert witnesses were to be designated in accordance with the rules of civil procedure.

The rules of civil procedure provide that the deadline for designation of an expert witness is 30 days before trial. Realtors designated their experts thirty-five days before trial. Because the docket control order did not designate a specific day for the designation of Relators’ expert witnesses and because Relators designated their experts within the requirements of the rules of civil procedure, we find that the trial court’s order striking Relators’ designation of experts and notice of deposition as “untimely” was a clear abuse of discretion.

The only question remaining on this issue is whether or not the Beamons have an adequate remedy by appeal. Designation of expert witnesses is a crucial element of the pretrial discovery process.

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Bluebook (online)
865 S.W.2d 583, 1993 WL 472502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beamon-v-oneill-texapp-1993.