Crane v. Texas Department of Transportation

880 S.W.2d 55, 1994 Tex. App. LEXIS 561, 1994 WL 72626
CourtCourt of Appeals of Texas
DecidedMarch 11, 1994
DocketNo. 12-92-00064-CV
StatusPublished
Cited by4 cases

This text of 880 S.W.2d 55 (Crane v. Texas Department of Transportation) 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
Crane v. Texas Department of Transportation, 880 S.W.2d 55, 1994 Tex. App. LEXIS 561, 1994 WL 72626 (Tex. Ct. App. 1994).

Opinion

RAMEY, Chief Justice.

This is an appeal of the trial court’s instructed verdict for the State in an eminent domain proceeding. The landowner, Mary Elizabeth Crane (“Crane”), recovered damages in the amount of the appraisal by the State’s valuation expert. Crane’s expert witness, Bryan Scott (“Scott”), and her other designated valuation witnesses were not permitted to testify because of Crane’s late supplementation of discovery. The primary question in this appeal is whether the trial court erred in proceeding with the trial of this case at a time when the landowner’s evidence was required to be excluded. We will reverse the trial court judgment and remand for a new trial.

In the underlying condemnation suit, the sole issue was the market value of Crane’s property taken by the State and the damage to the remainder of Crane’s land. With no evidence adduced, the trial court granted the State’s motion for an instructed verdict for the landowner in the amount of $57,550 as opined by the State’s expert. In her Bill of Exception, Crane’s expert witness, Scott, testified that the value of the property taken and the damage to the remainder of her property was $214,000.1 The Special Commissioners had earlier assessed damages to Crane in the amount of $75,000; both sides had filed objections to this award.

The discovery at issue pertained to responses to an instrument designated “Plaintiffs (State’s) First Motion to Produce and First Set of Written Interrogatories” mailed to Crane’s counsel on January 17, 1991. [57]*57“Defendant’s (Crane’s) Answers to Interrogatories and Response to Request for Production” was timely mailed to the State’s attorney on February 15, 1991.

The State’s interrogatories numbered one and two requested identification information of Crane’s expert witnesses as well as those individuals who had knowledge of relevant facts. Crane’s response identified Scott and four other experts, including the State’s expert witness, Pat Murphy; she listed herself in addition to the experts as having knowledge of relevant facts. In answer to the third interrogatory as to comparable sales, the highest and best use and fair market value of the property, Crane responded, ‘Will be furnished by written report.”

No promised report was provided by June 28,1991, the date the court on its own motion set the ease for trial for the week of July 23, 1991. By agreement the ease was passed from that setting. On August 5 the court reset the case for trial for August 22. On that same date, August 5,1991, Scott’s report was received by Crane’s counsel; no explanation was offered for Scott’s delay of several months in preparing and sending the report to Crane. A copy of that report was mailed to the State on August 8; Crane provided the State with no other written reports.

Other discovery activity by the parties included the taking of Scott’s and Crane’s oral depositions by agreement on August 15 and 16. On August 22, 1991, the date the case had been set for trial, Crane delivered supplemental answers to certain of the interrogatories in which she increased her claimed damages from $25,000 to $65,000 as a result of the taking which is alleged to have caused a loss of a large number of birds in her aviary operation situated on the property.

A jury was selected on the 22nd and the trial commenced on August 27. On August 26, Crane again supplemented her answers by supplying documentation in support of her claimed damages. After the case was called for trial on August 27, the trial court refused to permit Crane to testify2 or to present to the jury any other evidence. The State offered no evidence, and the court then granted the instructed verdict in favor of the State.

Four of Crane’s five points of error relate to the court’s refusal to allow her to present valuation evidence by the witnesses Scott, Pat Murphy, Del Moore,3 or herself. The testimony of these witnesses was excluded because of late supplementation of her answers to interrogatories and the failure to timely provide the promised written reports from the named experts.

Discovery supplementation must be accomplished not less than thirty days prior to the beginning of trial unless there is good cause for later supplementation. Tex.R.Civ.P. 166b(6). A party that fails to timely supplement shall not be entitled to present such evidence unless the court finds good cause to require admission. Tex.R.Civ.P. 215(5).

The sanction for failure to supplement discovery is unique. Rule 215(5) prescribes the single mandatory sanction that the untimely supplemented evidence be excluded. We are instructed not to disregard this plain language of Rule 215(5). Alvarado v. Farah Manufacturing Co., Inc., 830 S.W.2d 911, 915 (Tex.1992). There can be no alternative to the imposition of the sanctions of Rule 215(5) absent a strict showing of good cause for the delay in supplementation by the offeror. Ibid.

Here, the requirement of supplementation was established by Crane’s representation in her interrogatory response that she would furnish written reports. Crane argues that the good cause exception should be used to excuse the failure to comply with discovery “in difficult and impossible circumstances.” Ibid at 914. Crane offered no explanation for the lateness of the preparation or delivery of the Scott report, the efforts to timely procure it nor an excuse for the other out-of-time supplementation. Crane’s counsel blames the State’s attorneys for misleading him by agreeing to take the Scott and Crane depositions and not urging a pre-trial motion to compel an earlier production of the Scott [58]*58report, but this conduct occurred within thirty days of trial and could not have been causative of the untimeliness of the supplementation. The trial court did not abuse its discretion in declining to find good cause for late supplementation. Thus, Crane’s first, third, fourth and fifth points of error are overruled.

Crane’s second point of error asserts that the trial court abused its discretion in failing to postpone the trial.4 This point is not controlled by the mandatory exclusion sanction of Rule 215(5). The general rule is that the trial court’s ruling in not granting a postponement will not be disturbed unless the record shows a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986).

Here, the able trial court “reluctantly” excluded all of the landowner’s testimony thereby foreclosing the presentation of the merits of her case. The exclusion of a party’s essential evidence and granting a directed verdict are severe sanctions to be reserved for a party who has so abused the discovery rules that, despite the imposition of lesser sanctions, its case can be presumed to lack merit. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991); Braden v. Downey, 811 S.W.2d 922, 929 (Tex.1991).5 These severe sanctions have come to be referred to as the “death penalty” and frowned upon as “trial by sanctions”. TransAmerican, 811 S.W.2d at 918.

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Cite This Page — Counsel Stack

Bluebook (online)
880 S.W.2d 55, 1994 Tex. App. LEXIS 561, 1994 WL 72626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crane-v-texas-department-of-transportation-texapp-1994.