Varner v. Howe

860 S.W.2d 458, 1993 Tex. App. LEXIS 1818, 1993 WL 142075
CourtCourt of Appeals of Texas
DecidedJune 23, 1993
Docket08-92-00193-CV
StatusPublished
Cited by44 cases

This text of 860 S.W.2d 458 (Varner v. Howe) 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
Varner v. Howe, 860 S.W.2d 458, 1993 Tex. App. LEXIS 1818, 1993 WL 142075 (Tex. Ct. App. 1993).

Opinions

OPINION

KOEHLER, District Judge.

In the trial of a motion to modify in a suit affecting the parent-child relationship, the jury found that an adult child of the parties had a disability requiring continued financial assistance beyond the child’s eighteenth birthday. Based on the jury verdict, a modification order was entered requiring the father to pay $375 per month for an indefinite period for the support of the child. The father brings this appeal assigning seven points of error to various rulings of the trial court. We reverse and remand.

FACTUAL BACKGROUND

The marriage of James E. Varner (Varner) and Peggy Lee Varner Howe (Howe) ended in divorce on November 8, 1977. In the decree, Howe was appointed managing conservator and Varner possessory conservator of their four-year-old minor child, Jason Wade Varner (Jason). Varner was ordered to pay $100 per month child support and in addition, to pay up to $225 per month for special schooling.1 When Jason no longer required special schooling, the child support was to increase to $150 per month. In early 1991, Howe filed a motion to modify, seeking an order to require Varner to continue payments for the support of Jason after he reached his eighteenth birthday on the grounds that because of a mental disability, he required substantial care and supervision and was not capable of self-support.

The motion came on for trial to a jury in November 1991. At the conclusion of the evidence, the jury found in answer to the questions submitted to it that Jason required “substantial care and personal supervision because of a mental or physical disability and will not be able to support himself’ which disability was known to exist before he reached his eighteenth birthday. The jury also found that Varner should pay child support of $375 per month and that a reasonable attorney’s fee for Howe’s attorney was $15,-750 through the trial of the ease. The jury then found that Varner should pay $7,876 on that fee. In his seven points of error, Varner contends that the trial court erred by its rulings permitting certain persons to testify who either had not been identified or properly identified as witnesses under the discovery rules (points one through four), by submitting the issue of child support guidelines to the jury (point five), by awarding court costs to Howe (point six) and by awarding attor[461]*461ney’s fees to Howe in the event of an appeal (point seven).

DUTY TO SUPPLEMENT

In his Point of Error No. One, Varner asserts reversible error by the trial court in permitting an expert witness called by Howe to testify over his objection that the witness had not been properly identified as such, either in her response to interrogatories or by supplementation.

Varner served interrogatories on Howe’s attorney on May 20,1991. Under Interrogatory Number 5, Howe was requested to list the names, addresses and telephone numbers of any expert witnesses she intended to call. In her answer to that interrogatory, Howe listed three persons: Sally Ash, Louis Gunther and James B. Martin. Interrogatory Number 6 inquired whether any of the persons listed under Number 5 had furnished any reports or other information to Howe or whether any of the listed experts had received any reports from any nonwitnesses which formed a basis for any of their expected opinions or testimony. Interrogatory Number 8 required Howe to state the names, addresses and telephone numbers of any persons having knowledge of relevant facts. Several weeks later, Howe’s attorney sent a letter dated July 30, 1991 to Varner’s attorney covering several suit-related procedural matters. The fourth paragraph of the letter stated:

I have also enclosed a copy of the most recent testing report of the subject child made by Kenneth Lovelett of Life Stages. By this letter you are put on notice that I am amending and supplementing Movant’s earlier response to your First Request for Documents and Things and further amending and supplementing Movant’s Answers to Interrogatory No.s [sic] 5, 6 and 8.

The letter was neither certified nor verified nor was a copy of the letter filed in the clerk’s office.

During the course of the trial, Howe called Kenneth Lovelett to testify as an expert regarding the results of numerous tests he had performed on Jason. Varner objected on the ground that Lovelett had not been listed as a witness in Howe’s response to interrogatories or by proper supplementation. Howe claimed that she had sufficiently identified Lovelett for supplementation purposes in the letter addressed to Varner’s attorney. Varner’s attorney was unsure whether he had ever received or seen the letter. The court overruled the objection and permitted Lovelett to testify as an expert.

Tex.R.Civ.P. 166b(6)(b) requires a party to supplement his answers by disclosing any previously undisclosed expert witness, including his name, address and telephone number, and the substance of his expected testimony, “as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court.”

Tex.R.Civ.P. 168, which governs interrogatories to parties, sets forth several requirements, two of which are relevant to this case:

• A true copy of the interrogatories and the written answers or objections, together with proof of service thereof as provided in Rule 21a, shall be filed promptly in the clerk’s office by the party making them,....
• The answers shall be signed and verified by the person making them and the provisions of Rule 142 shall not apply.

Finally, under Tex.R.Civ.P. 215(5), a party who fails to supplement his response to an interrogatory requesting identification of an expert witness may not offer the testimony of that expert unless the court finds good cause, with the burden being on the offering party to show good cause on the record.

Howe asserts that her attorney’s letter of July 30, which named Lovelett and enclosed a copy of his report, sufficiently put Varner on notice that she intended to call Lovelett as an expert witness to meet the supplementation requirements of Rule 166b(6)(b). She cites and relies heavily on Jones v. Kinder, [462]*462807 S.W.2d 868 (Tex.App. — Amarillo 1991, no wiit) for the proposition that the technical requirements of Rule 168(5) should not be engrafted on the supplementation requirements of Rule 166b(6). Jones held nothing more than that verification of a supplement to answers to interrogatories is not necessary under Rule 166b(6). 807 S.W.2d at 872. Against that argument, Varner contends that the letter from Howe’s attorney, assuming that his attorney received it, not only lacks verification, which he argues is required by Rule 168, but is ambiguous as to whether it was intended as the supplementation or as merely notice that the attorney would be amending and supplementing Howe’s answers to interrogatories nor can it be determined specifically whether Lovelett is being designated as an expert or merely as a person having knowledge of relevant facts. More important, the letter did not meet any of the other requirements of Rule 168(5) except that it be in writing.

Jones has been cited with approval and followed on the nonnecessity of verification by at least four other courts: Soefje v. Stewart, 847 S.W.2d 311 (Tex.App.

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Bluebook (online)
860 S.W.2d 458, 1993 Tex. App. LEXIS 1818, 1993 WL 142075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varner-v-howe-texapp-1993.