Court of Appeals of Texas,

Eastland.

Ricky RAINS, Appellant

v.

SENTRY INSURANCE, a Mutual Company, Appellee.

No. 11-98-00229-CV.

|

Dec. 16, 1999.

Attorneys & Firms

Charles A. Hood, for Ricky Rains.

Clay White and Reid William Martin, for Sentry Insurance.

Panel consists of: ARNOT, C.J., and McCLOUD, S.J.,⁴ and DICKENSON, S.J.⁵

OPINION

BOB DICKENSON, Senior Justice.

*1 After an administrative hearing, the Texas Workers’ Compensation Commission held that Ricky Rains failed to prove that he sustained a compensable injury on May 17, 1995, while in the course and scope of his employment for a company which had workers’ compensation coverage by Sentry Insurance. Rains appealed to the county court at law. On October 8, 1998, the trial court signed an order granting a directed verdict that Rains take nothing. Rains appeals. We affirm.

Issues Presented

Rains presents a single issue in which he argues that the trial court improperly imposed “Death Penalty” sanctions because the two witnesses who were not allowed to testify:

Had Been Otherwise Disclosed; Been Deposed; One Had Testified Previously and the Other Was Under the Objecting Party’s Control; and Both Sides Had Questioned The Jury Panel About Them On Voir Dire.

Sentry restates the issue in its brief, arguing that the issues presented are:

I. Did the trial court correctly grant an instructed verdict?

II. Did the appellant fail to preserve error, if any, because he presented no Bill of Exception at trial?

Background Facts

After the jury was selected, Sentry filed its trial brief in support of its motion to exclude the testimony of any witness not properly designated. The trial court and both counsel discussed the situation in open court, and the record clearly shows that Sentry had sent interrogatories to Rains’ attorney under TEX.R.CIV.P. 166b for “discovery of potential witnesses.”¹ See also TEX.R.CIV.P. 215(5).

Rains’ attorney told the trial court that he could not find those interrogatories in his file. He agreed that they were received by his office because the person who signed the certified receipt was his employee at the time the receipt was signed. Rains’ attorney also said: “The only thing I can tell the Court is they were misplaced somehow.”² Rains’ attorney also pointed out that both of the witnesses that he wanted to call had already been deposed. He asked the court, “for good cause,” to let him call the two witnesses.

The trial court granted Sentry’s motion to exclude any witnesses, other than Rains, who had not been disclosed in response to the discovery interrogatories. Rains was in the penitentiary and, therefore, not available to testify. Rains’ deposition had been taken, but it was not offered into evidence. There was no timely offer of proof as to what the testimony of the excluded witnesses would have been. Rains’ attorney rested, and the trial court granted Sentry’s motion for instructed verdict.³

Exclusion of Testimony

First, we do not agree that the trial court’s ruling on the exclusion of testimony by the two undisclosed witnesses was a “Death Penalty” sanction. Consequently, most of the cases cited by Rains’ attorney are not in point. While the exclusion of these two witnesses’ testimony damaged his case, Rains’ deposition could have been read to the jury, and it would have prevented the instructed verdict. The trial court did not err in following the law as declared by the Supreme Court in Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990):

*2 The sanction for failing to comply with this rule is the automatic exclusion of the unidentified witness’ testimony.

* * *

Counsel for the [party who failed to identify witnesses] attempted to show good cause by arguing that he had orally identified [them] more than once in advance of trial … and that his failure to [identify them in writing] was inadvertent. Assuming that all these explanations are true, they are insufficient to establish good cause for the admission of the testimony of a witness not properly identified in discovery.

The absence of surprise, unfairness, or ambush does not alone satisfy the good cause exception to the sanction of automatic exclusion. Identification of witnesses in response to discovery must be in writing; oral notice is not proper. This avoids the inevitable disputes over who said what when. The fact that a witness’ identity is known to all parties is not itself good cause for failing to supplement discovery. A party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory. Thus, even the fact that a witness has been fully deposed, and only his or her deposition testimony will be offered at trial, is not enough to show good cause for admitting the evidence when the witness was not identified in response to discovery. Objection to the offer of the deposition at trial is sufficient to preserve error…. Inadvertence of counsel is also not good cause. (Emphasis added; citations omitted)

While Sharp was discussing undisclosed expert witnesses under Rule 166b(e), the rule also requires disclosure of other potential witnesses. See Rule 166b(d). See also State Farm Fire & Casualty Company v. Morua, 979 S.W.2d 616, 620 (Tex.1998); Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394, 395 (Tex.1989). The record does not show any abuse of discretion by the trial court in refusing to find good cause and in refusing to permit the use of the undisclosed witnesses. There was no attempt to withdraw the announcement of ready and move for continuance. Consequently, the issue presented by Rains is overruled.

Moreover, we agree that the trial court did not err in granting the motion for instructed verdict when Rains’ attorney rested without reading Rains’ deposition to the jury. See Gee v. Liberty Mutual Fire Insurance Company, supra at 397. We also agree that Rains’ attorney did not preserve error because there was no timely offer of proof as to what the testimony of the two excluded witnesses would have been. In order to preserve error, the bill of exception or offer of proof “must be specific enough” for the reviewing court to determine the admissibility of the excluded evidence. Powell v. Powell, 554 S.W.2d 850, 854 (Tex.Civ.App.-Tyler 1977, writ ref’d n.r.e.).

This Court’s Ruling

*3 The order of the trial court is affirmed.

	Footnotes
4		Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
5		Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
1		All references to the discovery rules refer to the version which was in effect in 1998. These rules were extensively revised, effective January 1, 1999.
2		Later in the discussion, he said: “I want the record to be clear-I don’t have those interrogatories in my file. I assume it was some type of office error.”
3		The written order refers to it as a motion for directed verdict.