D&M Creative Custom Builders, Inc. v. Paul Pearce and Linda Pearce

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-25-00450-CV

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D&M CREATIVE CUSTOM BUILDERS, INC., Appellant V.

PAUL PEARCE AND LINDA PEARCE, Appellees

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On Appeal from the 457th District Court Montgomery County, Texas

Trial Cause No. 23-08-11792

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MEMORANDUM OPINION

Appellant D&M Creative Custom Builders, Inc. (“D&M”) appeals the trial court’s final judgment in favor of Appellees Paul Pearce and Linda Pearce (“Paul and Linda”). We reverse the trial court’s judgment and remand the cause to the trial court.

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Background

D&M’s Petition

D&M’s Third Amended Petition (the “Petition”) was the live petition at the time the trial court granted final judgment in favor of Paul and Linda. In the Petition, D&M alleges Paul and Linda hired D&M to construct their new home in Conroe but then failed to pay for requested upgrades and additions to the home that exceed the scope of the contract and exceed the original financing package after D&M had completed upgrades and additions and Paul and Linda had approved and accepted the upgrades and additions. D&M asserted a cause of action against Paul and Linda for quantum meruit and requested recovery of all amounts due and owing from the additional work, plus pre- and post-judgment interest, court costs, attorney’s fees, and all other relief to which D&M is entitled. D&M alleges in its Petition that it is entitled to attorney’s fees under Chapter 38 of the Texas Civil Practice and Remedies Code and that all conditions precedent to D&M’s claim for relief have been performed or have occurred.

Paul and Linda’s First Amended Answer Paul and Linda filed a First Amended Answer, generally denying D&M’s allegations and specifically denying that there were any change orders for the “additional” work, denying that they breached the contract between the parties, and denying that they committed any fraud. Paul and Linda requested a recovery of

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attorney’s fees from D&M under section 134.005(b) of the Texas Civil Practice and Remedies Code.

Paul and Linda’s Rule 193.6 Objection Paul and Linda filed a Rule 193.6 Objection, requesting that the trial court strike D&M’s designations of its expert witnesses Milton Downs and Doug Loomis (the “experts”) and preclude them from providing expert testimony at trial. See Tex. R. Civ. P. 193.6 (precluding offer of material or information or testimony by a non- named party if the party seeking to offer the evidence fails to timely include that material or information or identify the witness in a discovery response, unless the court finds there was good cause for the failure or the failure will not unfairly surprise or unfairly prejudice the other parties). According to Paul and Linda, in D&M’s disclosures, D&M failed to include in its expert witness designations the experts’ opinions or how they formed their opinions, as well as information about the experts’ compensation, as required by Rule 195.5(a). Paul and Linda also argued that D&M has failed to disclose any method of calculating damages, as required by Rule 194.2(b)(4).

Hearing on the Rule 193.6 Objection After a jury was empaneled but before jury selection, the trial court held a pre-

trial hearing on the Rule 193.6 Objection. After hearing arguments, the trial court

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orally granted the Rule 193.6 Objection and denied D&M’s oral motion for continuance:

THE COURT: I’m going to grant the 193.6 on both the expert issue and on the damages issue. So - -

[D&M’s Counsel]: And granting that, as a matter of law, expert testimony is required?

THE COURT: Yes. For a fair - - for a scope opinion, fair and reasonable amount of damages requires an expert, and since no expert disclosure was done, by admission. I’m granting that, and then also the damage model is not - - has not been properly disclosed. So with that - -

[D&M’s Counsel]: Could I add one thing for the record?

THE COURT: Yeah.

[D&M’s Counsel]: I’d just add that the issue of whether expert testimony is even required in the first place is a legal question that should have been brought by a summary judgment and the summary judgment deadline has long passed, so - -

THE COURT: Okay. All right. I’m going to deny that. This is just a disclosure issue. So - -

[D&M’s Counsel]: Your Honor, . . . would you allow us a short continuance to - -

THE COURT: Denied. This case has been continued a couple - -

this is now two years old and we are doing the job of . . . two and a half courts over there. We just can’t. We can’t continue the case. It’s too much cases on our docket. . . . And we’re going to dismiss the jury.

Thanks.

Final Judgment

The day after the pre-trial hearing, the trial court signed a Final Judgment, stating:

On August 25, 2025, the Court called the above numbered and styled cause to trial. D&M [] appeared through its attorneys[.] Paul Pearce and Linda Pearce appeared in person and through their attorneys[.]

Paul Pearce and Linda Pearce presented their Rule 193.6 Objection (the “Objection”), the court received evidence in support of

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the Objection, heard arguments of counsel on the Objection, and upon considering the Objection, the evidence, and Rule 193.6 of the Texas Rules of Civil Procedure granted the relief sought in the Objection.

After considering D&M[]’s lack of evidence to support the elements of its only claim, and upon applying the law to the lack of evidence, it is ORDERED, ADJUDGED, and DECREED that D&M [] take nothing from Paul Pearce and that D&M [] take nothing from Linda Pearce. It is ORDERED, ADJUDGED, and DECREED that Paul Pearce and Linda Pearce have and recover from D&M [] their taxable court costs, for which let execution issue. It is further ORDERED, ADJUDGED, and DECREED that interest accrue on the sum awarded in this paragraph beginning on the date of this Final Judgement at the rate of 7.5% per annum, compounded annually, for which let execution issue.

It is further ORDERED, ADJUDGED and DECREED that all writs to enforce this Final Judgment shall issue.

Any other relief requested by a party to this action that is not expressly given in this Final Judgment is denied. This Final Judgment finally disposes of all parties and all claims[] and is appealable.

D&M’s Motion for Reconsideration and for New Trial D&M filed a Motion for Reconsideration and for New Trial, stating that “[l]ess than an hour before voir dire, the [trial court] sua sponte dismissed the case, erroneously ruling that a quantum meruit claim cannot proceed without expert testimony of damages.” In the motion, D&M argued, among other things, that the trial court’s ruling functioned as an improper summary judgment. Citing Teer v. Duddleston,1 D&M argued that it is error to render final judgment in favor of a party that made no motion for summary judgment. According to D&M, the Pearces filed a Rule 193.6 evidentiary objection and not a Rule 166a summary judgment motion.

1 664 S.W.2d 702, 703 (Tex. 1984).

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D&M argued that the trial court converted Paul and Linda’s “objection” into a take- nothing judgment, and that “[w]hat occurred at pretrial was, in substance, a dispositive ruling on the merits, a summary judgment without the due-process safeguards Rule 166a requires.” D&M asserted:

Even if the [trial] Court had concerns about disclosure, dismissal was still unwarranted. . . . The proper course here would have been to allow Plaintiff to supplement, grant a brief continuance, or allow argument about lack of prejudice or surprise, not to dismiss the case outright. Here, the case was dismissed immediately before trial, so there was no 21-day notice, no motion, and no opportunity to properly oppose, whether by briefing the issues or marshaling evidence. This deprived D&M of its day in court and its fundamental right to a jury trial.

Paul and Linda’ Response to D&M’s Motion for Reconsideration and for New Trial Paul and Linda filed their Response to D&M’s Motion for Reconsideration and for New Trial. As to D&M’s argument that the trial court’s sua sponte final judgment without a summary judgment having been filed was improper, Paul and Linda argued:

Because the [trial] Court granted the Rule 193.6 Objection and precluded D&M from putting on any evidence of damages, there was no need to have a trial as D&M could put on no evidence to make a prima facie case of the elements of its claim. Further, D&M’s argument that the Court should have granted leave or a continuance to fix its issues is a far-fetched plea considering that at the time of trial, this case was two years old, that D&M had been granted a continuance in January, and the fact that this case was likely one of the oldest cases on [the trial] Court’s already overloaded docket. As such, the [trial] Court got it right, and the Motion for New Trial should be denied.

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The trial court signed an Order denying D&M’s Motion for Reconsideration and for New Trial. And D&M timely appealed the trial court’s final judgment.

Issues on Appeal

In D&M’s first issue, D&M argues that Rule 193.6 is a narrow rule of evidentiary exclusion, not a mechanism for resolving legal questions, and the trial court erred by using Rule 193.6 to rule that D&M had no evidence of damages after first using the rule to determine that D&M (1) could not prove quantum meruit damages without expert testimony and (2) had relied on an unrecoverable measure of damages. In its second issue, D&M contends that the trial court erred by ruling that expert testimony is required and dismissing the claim under Rule 193.6 for failure to designate a damages expert. In issue three, D&M argues that the trial court erred by ruling that D&M sought contract damages and dismissing the claim under Rule 193.6 for allegedly disclosing an invalid damages model. And in its fourth issue, D&M argues that the trial court abused its discretion in denying D&M’s motion for reconsideration and a new trial.

Analysis

In issue one, D&M argues the necessity of expert testimony and the proper measure of damages are legal issues, and that the trial court erred by using Rule 193.6 to decide those issues and dismiss the case right before trial. According to D&M, the trial court, in granting Paul and Linda’s Rule 193.6 Objection, “made

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sweeping sua sponte legal determinations that D&M could not prove damages without an expert and had proceeded under an invalid measure of quantum-meruit damages.” D&M contends that Paul and Linda did not file a Rule 166a motion for summary judgment but instead filed a Rule 193.6 objection, the trial court’s ruling on the objection functioned as an improper sua sponte summary judgment, and the take-nothing judgment must be reversed and the case remanded for trial.

Paul and Linda cite no authority, nor are we aware of any, authorizing a trial court to enter a final judgment dismissing a case based on a ruling on Rule 193.6 objections and in the absence of a motion for summary judgment, or some other dispositive motion.

In Accurate Industries, Inc. v. Nelson, this Court explained:

When a party fails to comply with a discovery rule, Rule 193.6 prohibits a party from “introduc[ing] in evidence the material or information that was not timely disclosed[.]” While the rule results in automatic exclusion of undisclosed evidence, it does not authorize the elimination of a party’s legal theories.

No. 09-22-00271-CV, 2025 Tex. App. LEXIS 178, at **17-18 (Tex. App.— Beaumont Jan. 16, 2025, no pet.) (mem. op.) (internal citations omitted). Here, the issues before the trial court on the Rule 193.6 Objection were evidentiary objections. Instead of exercising its discretion and excluding the evidence, the trial court determined, as a matter of law, that D&M could not prove any damages without an expert and further that it had not used a proper measure of damages for a quantum

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meruit claim, and then went even further and dismissed the jury and rendered verdict in favor of defendants Paula and Linda. The proper pre-trial vehicle for challenging whether D&M had no evidence or insufficient evidence of damages would have been by use of a dispositive motion such as a motion for summary judgment. See, e.g., Paschal v. Engle, No. 03-16-00043-CV, 2016 Tex. App. LEXIS 9161, at **1-11 (Tex. App.—Austin Aug. 23, 2016, no pet.) (mem. op.) (challenge to damages element based on no expert testimony as to damages brought through no-evidence motion for summary judgment); Coble v. City of Mansfield, 134 S.W.3d 449, 454 (Tex. App.—Fort Worth 2004, no pet.) (“Because the proper measure of damages is a question of law, it is an appropriate matter for summary judgment.”). Alternatively, in the event D&M had failed to meet its burden of proof at trial, a directed verdict may have become appropriate after D&M rested. Here, the trial court erred in entering a dispositive final judgment against D&M when there was no dispositive motion. See Teer, 664 S.W.2d at 704 (it is reversible error to enter summary judgment in the absence of a filed motion for summary judgment); Knutson v. Estella Friess & Steven Friess, No. 09-08-00181-CV, 2009 Tex. App. LEXIS 3314, at **9- 10 (Tex. App.—Beaumont May 14, 2009, no pet.) (mem. op.) (trial court erred in granting a sua sponte summary judgment when no party moved for summary judgment and, to the extent the trial court reviewed the case as if it were a summary

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judgment proceeding, the court was not authorized to do so by the Texas Rules of Civil Procedure).

We sustain issue one, which is dispositive of this appeal. Accordingly, we need not address D&M’s remaining issues. See Tex. R. App. P. 47.1. We reverse the trial court’s judgment and remand the case to the trial court.

REVERSED AND REMANDED.

LEANNE JOHNSON

Justice

Submitted on August 14, 2026 Opinion Delivered August 31, 2026

Before Johnson, Wright and Chambers, JJ.