in Re Grand Harbor Property Owners' Association

• Court: Court of Appeals of Texas
• Decided: January 27, 2022
• Docket: 09-21-00395-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00395-CV __________________

IN RE GRAND HARBOR PROPERTY OWNERS’ ASSOCIATION

__________________________________________________________________

Original Proceeding 457th District Court of Montgomery County, Texas Trial Cause No. 19-02-01622-CV __________________________________________________________________

MEMORANDUM OPINION

In a petition for a writ of mandamus, Grand Harbor Property Owners’

Association, Relator, (“Grand Harbor”) contends the trial court clearly abused its

discretion by striking two expert witnesses. The Real Parties in Interest, Edward

Griffith, Barbara Griffith, Todd Butard and Rachelle Butard, (“Homeowners”), filed

a response to the petition.

Grand Harbor argues mandamus relief should issue because by striking the

expert witnesses the trial court imposed “death penalty” sanctions without

complying with the procedural and substantive standards for imposing sanctions.

1 Grand Harbor argues the trial court erred by granting the Homeowners’ motion to

strike for noncompliance with Texas Rule of Civil Procedure 193.6 because Grand

Harbor did not abuse the discovery process when it designated its testifying experts

on the last available day, identified the general areas their testimony might cover,

and informed the opposing parties that the experts had not yet prepared reports.

Grand Harbor complains the trial court failed to consider a lesser sanction before

striking the expert witnesses and the Homeowners did not show they were prejudiced

by Relator’s failure to produce a report with the designations.

The Homeowners argue the trial court merely applied the Texas Rule of Civil

Procedure 193.6 exclusion rule as a matter of admissibility, not as a sanction for

discovery abuse. The Homeowners contend the expert witnesses were not timely

identified or disclosed and Relator failed to meet its burden to show good cause, lack

of unfair surprise, or lack of unfair prejudice as required by Rule 193.6(a).

Additionally, Grand Harbor’s expert witness designations failed to disclose any

opinions of either expert witness and the opinions were not disclosed by other means

or in the response to a request for disclosure. The trial court’s docket control order

in paragraph two required all parties to designate experts and include the name,

address, telephone number, subject of testimony and “the opinions that will be

proffered by each expert[]” as part of the expert witness designation. The docket

control order also warned that “[e]xperts not listed in compliance with this paragraph

2 will not be permitted to testify absent a showing of an exception under Rule 193.6.”

And it states that “[a] Rule 194 disclosure is not a substitute for this filed

designation.” Parties seeking affirmative relief were to file their designations 150

days before trial, and all other parties were to file their designations 120 days before

trial. The docket control order set the trial date for December 13, 2021.

We may grant mandamus relief to correct a trial court’s abuse of discretion

when an appeal is an inadequate remedy. In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d

833, 839-40 (Tex. 1992) (orig. proceeding). We determine the adequacy of an

appellate remedy by balancing the benefits of mandamus review against the

detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig.

proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. The Court, having

examined and fully considered the petition for writ of mandamus, the response of

the Homeowners and the applicable law, finds that Grand Harbor has not met its

burden to obtain mandamus relief. Grand Harbor has failed to establish that the trial

court clearly abused its discretion by granting the motion to strike, or that it lacks an

adequate appellate remedy.

After reviewing Relator’s petition and the response of the Real Parties in

Interest, we conclude that Relator has failed to establish it is entitled to the relief

3 sought in its petition. Accordingly, we deny the petition for a writ of mandamus. See

Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on December 30, 2021 Opinion Delivered January 27, 2022

Before Golemon, C.J., Horton and Johnson, JJ.