Opinion issued August 11, 2026
In The
Court of Appeals
For The
First District of Texas
Victoria’s condition, as he had indicated he would do so in his disclosures by identifying the custodians of records for both Dr. James Kendrick and Walgreens (among other healthcare providers) as persons having knowledge of relevant facts. So, Wanda propounded discovery asking for these records. Zachary did little in response and took his time in doing it, so Wanda filed motions to compel and motions to enforce court orders. When Zachary still did not produce the records, Wanda moved for sanctions. The trial court declined to award death penalty sanctions, but it did impose $7,727 in sanctions over what it saw as foot-dragging and non-compliance.
At trial, a jury heard testimony from Victoria’s (1) estate planning attorney Laura Jennett, (2) granddaughter Denise Sparks, (3) daughter Wanda, and (4) daughter-in-law Sally Kubiak. The jury found testamentary capacity, found the will valid, did not find undue influence, and did not find fraud. The court signed an order admitting the will to probate and authorizing letters testamentary. Zachary appeals.
Analysis
On appeal, Zachary raises three issues. First, he assails the order that imposed $7,727 in sanctions and compelled him to produce Dr. Kendrick’s records and Walgreens’s pharmacy records. Second, he says that the trial court violated a limine order when it admitted testimony from the attorney and from the granddaughter
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Denise. Finally, he says that Denise’s testimony should have been excluded for the further reason that Wanda’s disclosure of Denise as a witness did not describe any expected testimony but merely listed her as the decedent’s granddaughter. I. The $7,727 in discovery sanctions.
Zachary’s first issue on appeal deals with discovery obligations and the trial court’s decision to impose sanctions for failing to produce certain medical records. Issue 1 reads as follows:
Did the Probate Court err in compelling Zachary Kubiak to produce records of Dr. Kendrick and Walgreens, and imposing sanctions for non-production, where the records were not in Zachary’s possession, custody, or control, and were the subject of a separate subpoena for those records?
In Zachary’s view, the records were not in his possession, custody, or control, and both Dr. Kendrick and Walgreens were already under a separate subpoena to produce them. As a result, the trial court impermissibly sanctioned a party for failing to produce documents that he did not possess or control.
In response, Wanda contests Zachary’s premise about whether the records were within his possession, custody, or control. She points to the part of Rule 192 that defines key words and phrases. The relevant definition provides:
(b) Possession, custody, or control of an item means that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item.
TEX. R. CIV. P. 192.7(b).
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With this definition in hand, Wanda then cites statutes that give Zachary such a right to the medical records. See TEX. EST. CODE §§ 55.101, 55.102; TEX. OCC. CODE § 159.003(a)(8).1 Wanda acknowledges that Zachary issued subpoenas to get the records, but she faults him for not following up adequately. Wanda points to the following facts. First, she had to file a motion to compel in October 2022, which resulted in a November 2022 court order compelling discovery responses within 30 days. Second, she filed a motion to enforce the court order in March 2023, plus a second motion to compel in April 2023, which resulted in another court order, this time with only a 5-day fuse for compliance and bolded language warning about the prospect of contempt or sanctions.
Next, in May 2023, Wanda filed a motion to show cause. “For a fourth time, after 170 days of delay, the Applicant again seeks intervention of the Court, this time to have Kubiak show cause as to why he has failed to comply with multiple orders
1 Section 55.101 of the Estates Code provides that “a person who is a party to a will contest or proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent’s death as part of the party’s claim or defense is entitled to production of all communications or records relevant to the decedent’s condition before the decedent’s death.” TEX. EST. CODE § 55.101. Section 55.102, in turn, provides that when a “physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records” receives a subpoena for them accompanied by “a file-stamped copy of the will contest or proceeding described by” section 55.101, they “shall release the communications or records to the requesting party without further authorization.” Id. § 55.102. Finally, section 159.003(a)(8) of the Occupations Code provides that physician–patient communications are not confidential “if the patient’s physical or mental condition is relevant to the execution of a will.” TEX. OCC. CODE § 159.003(a)(8).
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of this Court to respond to production requests or, in the alternative, Noskrent now asks the Court to grant sanctions that would bar testimony or introduction of any evidence pledged, but not produced. Applicant needs to complete depositions and prepare for trial and cannot hold her breath waiting for promised production from Kubiak that has not been produced, despite two (2) orders of this Court to comply with the requests.”
The trial court signed the show cause order and directed Zachary to appear at a hearing scheduled for June 29, 2023. At the hearing, the parties ventilated the discovery issues thoroughly. The court heard testimony from Dr. Kendrick, an orthopedic surgeon who had seen Victoria from 2005 to 2020. Dr. Kendrick brought some records to court with him, but the trial court ruled that they were not in admissible form at that time and thus would not be admitted at the show cause hearing. The court concluded that Wanda was entitled to the discovery and that some discovery sanctions were in order, but “certainly” not death penalty sanctions. It ordered Zachary to pay the reasonable and necessary attorney’s fees Wanda incurred in bringing her motion to enforce the prior discovery orders in the amount of $7,727.
Upon careful review of the record, we perceive no abuse of discretion. The rules empower a trial court to enforce discovery obligations and to take remedial action in the event of a failure to comply with an order or a discovery request. See
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TEX. R. CIV. P. 215.2(b)(2) (authorizing “an order charging all or any portion of the expenses of discovery . . . against the disobedient party or the attorney”); TEX. R. CIV. P. 215.2(b)(8) (authorizing an award of “reasonable expenses, including attorney fees, caused by the failure”). The trial court had ample basis for concluding that Zachary had possession, custody, or control of the records in question, and that he failed to comply with his obligations to answer discovery and obey court orders.2 For starters, when Wanda initially requested the production of these medical and pharmacy records, Zachary did not object that they were not in his possession (either in the most literal sense of possession or as that term is defined by the discovery rules). Instead, he merely objected that these records could and therefore should “be obtained from another source that is more convenient, less burdensome, or less expensive.” Consequently, under the discovery rules, Zachary waived any contention that he lacked possession of these records. See TEX. R. CIV. P. 193.2(a),
2 At one point in his opening brief, Zachary says that when it comes to discovery sanctions, the punishment should fit the crime. That comment, if read in isolation, could be construed as a challenge to the dollar figure reflected in the order.
However, Zachary does not attack the amount as excessive beyond asserting that the imposition of sanctions in any amount would be unjust because “there was no ‘crime’”—that is, no sanctionable conduct—at all. The $7,720 amount apparently corresponds to the amount of attorney’s fees that Wanda incurred because of the failure to comply with discovery obligations and court orders; but no record has been brought forward with the underlying documentation that was supplied to the trial court. Hence, Zachary does not say that the $7,270 figure was unsupported or, if supported, in need of reduction to some fraction of that figure. He says that he did nothing wrong, and that a party who flatly lacked possession of the documents cannot be sanctioned in any amount.
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(e) (requiring party responding to written discovery requests to state with specificity the legal or factual basis for any objections and providing that objections are waived if not stated within time response is due); In re City Info Experts, LLC, No. 01-20- 00364-CV, 2020 WL 6435782, at *14 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, orig. proceeding) (mem. op.) (party waived right to object by failing to do so by date that discovery responses were due).
In any event, setting aside Zachary’s failure to timely object that he lacked possession, Wanda is correct that, under applicable statutes, Zachary had an equal or superior right to possession as the healthcare providers who had possession of the records at issue. See TEX. EST. CODE §§ 55.101, 55.102; TEX. OCC. CODE § 159.003(a)(8). Therefore, the trial court did not err in ordering Zachary to produce these records or in awarding attorney’s fees resulting from his prolonged and repeated failure to do so as a sanction. See, e.g., Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370, 377–80 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (affirming award of attorney’s fees as sanction due to adversary’s delay and obstruction in discovery).
We overrule Zachary’s first issue.3
3 In overruling Zachary’s first issue, we also note that we would reject the objection he actually asserted—that these records could be obtained from another source that was more convenient, less burdensome, or less expensive—had he raised it as a basis for reversal on appeal. By this objection, Zachary effectively asserted that Wanda could obtain these records from the healthcare providers. This is true under
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II. The limine order and the admission of testimony from two witnesses.
Issue 2 relates to admission of evidence. It contends that the trial court “abused its discretion in admitting the testimony of Noskrent’s witnesses, Laura Jennett and Denise Sparks, in violation of its own limine order.”
The order referred to in Issue 2 grew out of a motion in limine. There Wanda advanced a fairly standard request for certain items to be brought up first with the court for a threshold ruling before they could come up in front of the jury. The first page of the motion contains language like the first page of most motions in limine: “Wanda asks the Court to instruct Contestant and his Counsel and experts not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, any of the matters listed below without first obtaining a ruling from the Court outside the presence and hearing of the jury.”
the applicable statutes. See TEX. EST. CODE §§ 55.101, 55.102; TEX. OCC. CODE § 159.003(a)(8). But Zachary does not dispute Wanda’s assertion that he, rather than she, wished to rely on these records to support his claims in the will contest.
Under these circumstances, the discovery rules generally place the burden of document production on the party who will rely on the documents to support its claims. See TEX. R. CIV. P. 194.2(b)(6) (requiring party—without awaiting discovery request—to produce copy or description by category and location of documents party has in its possession, custody, or control that it may use to support its claims); see also TEX. R. CIV. P. 196.6 (party producing documents bears expense of production absent court order for good cause). Moreover, Zachary later amended his responses to Wanda’s requests for production to omit any objection whatsoever to the request for these records. Hence, the trial court did not abuse its discretion by assigning the burden and expense of production to Zachary.
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Next, the motion lists a string of items, numbered as item 1 through item 21.
It closes by reiterating its request for a threshold ruling: “For these reasons, Wanda asks the Court to instruct Contestant and Contestant’s counsel and witnesses not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, any of the matters listed above without first obtaining a ruling from the Court outside the presence and hearing of the jury.”
Item 8 reads as follows:
8. Presenting any witness that Contestant did not name in response to discovery requests, assertion of facts or occurrences not disclosed in discovery responses, or any documents requested by Wanda but not produced by Contestant. See Gee v.
Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989).
Likewise, Contestant should be barred from doing the following:
…
g. Offering testimony (including cross examination) from or about a witness not identified in written answers to discovery served on or before October 9, 2023[.]
The court granted the motion at a pretrial hearing, stating that the first nine items in the motion were granted on a mutual basis: “On grounds 1 through 9, it’s a joint limine. Both sides – neither side objects.”
When the trial began two days later, Wanda called attorney Laura Jennett to be the first witness. Zachary objected based on the limine ruling: “We have an objection to this witness under the limine. Under Item 8-G.” Both sides then approached the bench to discuss the matter, in keeping with the limine ruling. After
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hearing from both sides, the court stated, “I’m going to overrule that objection.” A similar exchange took place when Wanda called the granddaughter Denise Sparks as the next witness.
Analysis starts with Rule 103, which provides that a party may claim error in a ruling that admits evidence only if the error affects a substantial right and the party timely objects or moves to strike and states the specific ground, unless it was apparent from the context. TEX. R. EVID. 103(a).
Applying this rule, courts have held that “a trial court’s ruling on a motion in limine is not a ruling that excludes or admits evidence; it is merely a tentative ruling that prohibits a party from asking a certain question or offering certain evidence in front of the jury without first approaching the bench for a ruling.” Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 124 n.1 (Tex. App.—Houston [1st Dist.] 2003, pet. denied); see Guerrero v. Cardenas, No. 01-20-00045-CV, 2022 WL 210152, at *16 (Tex. App.—Houston [1st Dist.] Jan. 25, 2022, pet. denied) (mem. op.) (same).
Thus, the law distinguishes a motion in limine from a pretrial motion seeking a definitive ruling on admissibility. See Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91–93 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Under Rule 103(a), a limine ruling “does not preserve error on evidentiary rulings at trial because it does not seek a ruling on admissibility.” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015) (per curiam).
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These principles render Issue 2 untenable. The pretrial limine ruling merely gave the parties a chance to discuss the evidence with the court before its unveiling, and the litigants got exactly that. The trial court gave the parties what they requested. Nothing in the limine ruling rendered the evidence inadmissible as such. Zachary was obviously free to object on additional grounds if he perceived a problem with, say, relevance, authenticity, or unreliable expert testimony, but he did not raise such an objection or obtain such an adverse ruling. All we have here is a limine ruling that the parties needed to raise the matter first with the court.
We overrule Zachary’s second issue.
III. The admission of testimony from the granddaughter.
Issue 3 advances an additional complaint about the decision to let Denise Sparks testify:
Did the Probate Court err by allowing Denise Sparks to testify at trial when she was identified in pre-trial disclosures only as “Decedent’s Granddaughter” without a brief statement of the subject matter of her expected testimony as required by TRCP 194.2(e) and should her testimony have been excluded under TRCP 193.6?
Zachary argues that identifying the witness as “granddaughter” fails to provide sufficient notice of the testimony’s substance.
In response, Wanda points out that Rule 194.2 does not require a summary of the testimony’s substance as such, but rather “the name, address, and telephone
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number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case.” TEX. R. CIV. P. 194.2(b)(5).
Wanda further notes that the meaning of a “brief statement” is illuminated by a comment to the rules. The comment states: “Rule 192.3(c) makes discoverable a ‘brief statement of each identified person’s connection with the case.’ This provision does not contemplate a narrative statement of the facts the person knows, but at most a few words describing the person’s identity as relevant to the lawsuit.” TEX. R. CIV. P. 192 cmt. 3. “For instance: ‘treating physician,’ ‘eyewitness,’ ‘chief financial officer,’ ‘director,’ ‘plaintiff’s mother and eyewitness to accident.’” Id.
Both sides knew that the trial would revolve around a 99-year-old testator’s ability to make a will and her susceptibility to deceit or any undue influence; accordingly, family members would spring to mind almost immediately as potential sources of such information. Given the circumstances, we hold that the disclosure complied with the rules by describing Denise Sparks as a granddaughter. The trial court thus acted permissibly in admitting the testimony. See Van Heerden v. Van Heerden, 321 S.W.3d 869, 876 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (concluding “Ann’s disclosure responses of ‘Petitioner’s father’ and ‘Petitioner’s sister’ adequately identify those witnesses’ connection to the case”).
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We overrule Zachary’s third issue.4 Conclusion
The trial court’s judgment is affirmed.
David Gunn
Justice
Panel consists of Justices Gunn, Caughey, and Morgan.
4 Zachary also raises a fourth issue, in which he argues that the trial court erred in granting judgment for Wanda in the will contest. But Zachary premises this fourth issue on the same purported errors he raises in his first three issues. As we have overruled his first three issues, we likewise overrule his fourth issue.