Court of Appeals of Texas, Houston (14th Dist.).

Bernard J. DOLENZ, Appellant

v.

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee

No. 14-94-01112-CV.

|

March 7, 1996.

Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.

OPINION

AMIDEI

*1 This is an appeal from a judgment for appellee, Nationwide Mutual Fire Insurance Company, in a bifurcated trial. Appellant, Bernard J. Dolenz, appealed an award by the Texas Workers’ Compensation Commission against appellee. Appellant’s suit for unpaid medical bills was severed from his suit on multiple grounds including breach of duty of good faith and fair dealing. The trial court excluded his testimony as an expert at the trial for unpaid medical bills on the grounds that he failed to respond or supplement an interrogatory designating expert witnesses. As a result, appellant could not prove that the medical expenses were reasonable and necessary and the court granted an instructed verdict in favor of appellee on the severed portion of appellant’s case for unpaid medical expenses. Thereafter, the court granted summary judgment on the balance of the severed cause of action for breach of duty of good faith and fair dealing and six other grounds. Appellant brings eleven points of error. In points of error one and two, he complains that the trial court erred in granting the instructed verdict at the trial appealing the workers’ compensation award. Points of error seven, eight, nine and ten contend the trial court abused its discretion in striking his witnesses. Points of error three, four, five and six contend that the trial court erred in granting summary judgment on appellant’s multiple claim portion of the suit. Point of error eleven claims the trial court erred in abating discovery as to all causes of action other than the appeal from the board award. We affirm in part and reverse and remand in part.

1. The instructed verdict.

Appellant’s point of error number eight contends the trial court erred in refusing testimony from Bradley Graves. Appellant is an attorney and represented himself in part and is also a medical doctor and brought this suit in his own name on an assignment of claim from his patient, Bradley Graves. Appellant had treated Bradley Graves for job-related injuries. The parties took the claim to the Workers’ Compensation Commission and appellant was awarded $6,000.00 for medical expenses arising out of his treatment of Bradley Graves. Both parties appealed to the trial court and appellant sued for reasonable and necessary medical expenses plus damages upon multiple grounds including breach of duty of good faith and fair dealing. The trial court severed the multiple grounds portion of the case from the recovery of medical expenses and set the case for trial on the recovery of appellant’s claim for unpaid bills for medical treatment to Bradley Graves.

At the trial, appellant called Bradley Graves as a witness. Appellee objected on the grounds that appellant had failed to properly identify Graves as a person with knowledge of relevant facts by listing his correct address and telephone number in response to an interrogatory requesting that information. Before the trial court could rule on the objection, appellant withdrew Graves as a witness. Appellant did not ask for a ruling by the trial court on the objection nor did he proffer the testimony of the witness for a bill of exceptions. An appellant who fails to obtain a ruling regarding admissibility of evidence does not preserve a complaint for appellate review. Maritime Overseas Corp. v. Ellis, 886 S.W.2d 780, 795 (Tex.App.-Houston [14th Dist.] 1994, no writ); Tex.R.App. P. 52(a) & (b). We overrule appellant’s point of error number eight.

*2 Similarly, point of error number nine claims that the trial court abused it’s discretion in disallowing Becky Hicks as a witness. Here, appellant called Ms. Hicks as a witness. Counsel for appellee asked for permission to approach the bench, which the court granted. An off-record conference was held at the bench and thereafter, appellant called Ms. Dolenz as a witness without getting a ruling on the admissibility of the testimony of Ms. Hicks. Appellant failed to make a record of expected the testimony of Ms. Hicks in the nature of a bill of exceptions. Appellant has failed to preserve error for this court to review. Tex.R.App. P. 52(a) & (b). We overrule point of error nine.

Appellant’s seventh point of error is that the trial court erred and abused its discretion in disallowing appellant’s expert testimony. Appellee propounded the following interrogatory to Dr. Dolenz and received the following response:

INTERROGATORY NO. 34: With regard to each expert witness who may be called as an expert witness(es) and with regard to each consulting expert who is not expected to be called as an expert but if the consulting expert’s opinion or impressions have been reviewed by a testifying expert, state the name, address and telephone number of each such expert, the subject matter for which the expert has been contacted and/or is expected to testify, the mental impressions and opinions held by the expert and the facts known to the expert which relate to or form the basis of the mental impressions and opinions held by the expert. If anyone has examined, or analyzed the person involved in the incident(s), state the name and address of each person, the specialty of each person, the nature of each examination test and experiment performed, and the results. Please attach a copy of any reports regarding the above, or reprint the contents as part of your response.

ANSWER: Dr. Bernard Dolenz and Dr. Robert Starr; their reports and findings are incorporated in the medical records which are being produced.

Appellant did not object to the propounded interrogatory nor did he supplement it prior to trial. The testimony of Dr. Dolenz was essential to prove the medical expenses and that the medical expenses were reasonable and necessary. Appellee did not file a motion to compel or otherwise complain of the response. At trial, appellee objected to the testimony of Dr. Dolenz on the ground that his response to the interrogatory was inadequate and that Rule 215(5), Texas Rules of Civil Procedure, prescribes a single, automatic sanction of exclusion of the evidence to be presented unless the trial court finds good cause to admit the evidence. The trial court sustained the objection and appellant moved for a mistrial advising the court that he could not prove his case without his testimony. Counsel for appellant advised the trial court that appellant felt that he had totally complied with the response to the interrogatory, had sent numerous letters to appellee advising it of his demand for reasonable and necessary medical fees, and that, through correspondence and conversations with appellee, and the oral deposition of Dr. Dolenz, there could be no doubt as to what he would testify to at trial. Also, counsel for appellant argued to the trial court that Rule 215, Texas Rules of Civil Procedure, required notice and hearing before imposition of sanctions. Counsel argued that to deny appellant the right to testify as to the reasonableness and necessity of the medical expense, would require withdrawal of appellant’s announcement of readiness. The trial court overruled the motion for mistrial and granted the motion of the appellee for an instructed verdict in its favor. In his motion for new trial, appellant argued that the trial court had “good cause” to permit Dr. Dolenz’ testimony which essentially was that there was no surprise to appellee and that the interrogatories, correspondence, appellant’s deposition and conversations over the previous five years certainly apprised appellee of who Dr. Dolenz was and to what he would testify.

*3 Rule 215(5), Texas Rules of Civil Procedure, provides:

5. Failure to Respond to or Supplement Discovery.

A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.

A trial court may impose sanctions on any party who abuses the discovery process, which includes the failure to properly supplement responses to discovery. Tex.R. Civ. P. 215. The legitimate purposes of discovery sanctions are to secure compliance with discovery rules, to deter other litigants from similar misconduct, and to punish violators. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986).

Although the choice of sanctions is left to the sound discretion of the trial court, Rule 215(2)(b) explicitly requires that any sanctions imposed be “just.” Whether an imposition of sanctions imposed is just is measured by two standards. First, a direct relationship must exist between the offensive conduct and the sanction imposed. Second, just sanctions must not be excessive. Transamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex.1991). With respect to the first standard, a just sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party, and should be “visited upon the offender.” The trial court must at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both. Id at 917.

Regarding the second standard, it is noted that the sanction imposed should be no more severe than necessary to satisfy its legitimate purpose. The court must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance. Id. at 917.

In this case, the trial court struck all of the expert testimony of Dr. Dolenz under the “automatic sanction” of Rule 215(5). Alvarado v. Farah Manufacturing Co, 830 S.W.2d 911, 914 (Tex.1992) states, in pertinent part:

The salutary purpose of Rule 215(5) is to require complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush. [citations omitted] The rule is mandatory, and its sole sanction-exclusion of evidence-is automatic, unless there is good cause to excuse its imposition. The good cause exception permits a trial court to excuse a failure to comply with discovery in difficult or impossible circumstances….

The trial court has discretion to determine whether the offering party has met his burden of showing good cause to admit the testimony; but the trial court has no discretion to admit testimony excluded by the rule without a showing of good cause.

*4 The supreme court in Alvarado at page 915, further stated:

We note, however, that the trial courts are not without power to prevent the enforcement of Rule 215(5) from operating as an injustice in a particular case. When a party has failed to timely identify evidence in response to discovery requests, the trial court has the discretion to postpone the trial under Rule 215(3), to impose an appropriate sanction upon the offending party for abuse of the discovery process. Such sanction may be used to compensate the non-offending party for any wasted expense in preparing for trial. Although the trial court should not allow delay to prejudice the non-offending party, the trial court should ordinarily be able to cure any prejudice by a just imposition of sanctions.

After Alvardo, the supreme court decided Smith v. Southwest Feed Yards, 835 S.W.2d 89 (Tex.1992), and held that “good cause” may exist when the party’s identity is certain and has been communicated to all other parties, either through pleadings or through other discovery completed at least thirty days before the trial. In this case. Dr. Dolenz was the sole party-plaintiff, and also the attending physician to the injured worker, Bradley Graves. He was also the expert witness on reasonableness and necessity of medical expenses, and one of the attorneys in his case. In his answer to the interrogatories, he identified himself as a person having knowledge of relevant facts, and he identified himself by name as an expert witness. He failed to detail the subject matter of his expected testimony. However, his pleadings detail the nature of his demand and his answers to the remainder of the interrogatories and requests for production certainly identified the “subject matter” of his testimony.

In the instant case, the Rule 215(5) automatic sanction was assessed by the trial court which resulted in appellant’s losing the opportunity to have his claims adjudicated on their merits. In short, without the testimony of Dr. Dolenz, the appellant could not prove that his expenses were reasonable and necessary, which resulted in the instructed verdict for appellee. We hold that such an exclusion amounts to an extreme penalty just as striking pleadings, dismissal, and entry of a default judgment.

Since the “death penalty” sanction was imposed on appellant by the trial court, we must test the sanctions against the standards stated in Transamerican Natural Gas v. Powell, 811 S.W.2d 913 (Tex.1991). The first standard requires that to be just, the sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party, and “visited” upon the offender, whether it be counsel, the party, or both. In the present case, it is not clear whether Dr. Dolenz or his counsel should be faulted for the answers to the interrogatories of appellee; the interrogatories are signed by an attorney who represented Dr. Dolenz and the record is silent as to any inquiry by the court into who was responsible for the answer to the offending interrogatory.

*5 Regarding the second standard, Transamerican held that a sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes, and that the trial court must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance. Id. In this case, there is nothing in the record to indicate that the trial court considered imposition of lesser sanctions or that such sanctions would not have been effective. If anything, the record strongly suggests that lesser sanctions should have been imposed and perhaps would have been effective. The court has the discretion to postpone the trial, if necessary, and impose an appropriate sanction, including compensation to the non-offending party for wasted expense in preparing for trial, unless the delay would prejudice the non-offending party. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (Tex.1992). “Sanctions which are so severe as to preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.” Transamerican Natural Gas v. Powell, 811 S.W.2d at 918. See also Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 850 (Tex.1992).

Appellees assert that the sanctions are an automatic exclusion of evidence under rule 215(5), Texas Rules of Civil Procedure, and cite Chapman v. Paul R. Wilson, Jr., D.D.S., 826 S.W.2d 214 (Tex.App.-Austin 1992, writ denied) as authority. In Chapman, the trial court excluded testimony of six experts other than parties under Rule 215(5) because Chapman failed to include in his response to an interrogatory the subject matter on which the experts would testify. Chapman is not applicable to this case. In this case, the individual party plaintiff was the expert witness and Smith v. Southwest Feed Yards, 835 S.W.2d 89 (Tex.1992) applies. Dr. Dolenz had timely identified himself and the subject matter of his expected testimony had been communicated to appellee through his pleadings and other answers to appellee’s interrogatories and requests for production. Under these circumstances, it is recognized that the constraints of Rule 215(5) may permit testimony by the party even though a proper discovery request was not accurately or completely answered. Id at 97. See also Smart v. Winslow, 868 S.W.2d 409 (Tex.App.-Amarillo 1993, no writ).

We find that the trial court abused its discretion in imposing the severe sanction of excluding the testimony of Dr. Dolenz and instructing a verdict for appellee. We sustain appellant’s points of error one, two and seven.

We reverse and remand that portion of the trial court’s judgment denying appellant’s recovery for unpaid medical bills for treatment to Bradley Graves.

2. The summary judgment.

In points of error three, four, five and six, the appellant claims that the trial court erred in granting summary judgment on that part of his case that alleged multiple grounds of suit including breach of duty of good faith and fair dealing. Part of the trial court’s order granted appellee judgment and denied appellant’s claim for unpaid medical expenses and the remaining portion of the judgment granted summary judgment without specifying the grounds for the granting of the summary judgment. Appellant did not include in the record the appellee’s motion for summary judgment which contained summary judgment proof in support of the motion. Appellant has the burden of bringing forward the summary judgment record to prove harmful error which would entitle him to a reversal. Absent a complete record of the summary judgment proof, we must assume that the omitted documents support the judgment of the trial court. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex.1990). We overrule appellant’s points of error three, four, five and six.

*6 Appellant’s eleventh point of error is that the trial court abused it’s discretion in abating the discovery as to all causes of action other than the appeal from the Workers’ Compensation award. The trial court had severed the medical expense claim from the bad faith and other claims of appellant. This severance was proper since these cases are fundamentally different and require different evidence. St. Paul Ins. Co. v. McPeak, 641 S.W.2d 284, 289 (Tex.App.-Houston [14th Dist.] 1982, writ ref’d n.r.e.). The trial court has broad powers in facilitating the discovery process and preventing abuse. Waguespack v. Halipoto, 633 S.W.2d 628, 629 (Tex. Ap.-Houston [14th Dist.] 1982, writ dism’d). The test for determining if the trial court abused it’s discretion is whether the trial court acted without reference to any guiding principles. If the trial court acts in an arbitrary or unreasonable manner, it abuses it’s discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985).

We find that the trial court did not abuse its discretion in abating the discovery as to all causes of action other than the appeal from the board award. We overrule appellant’s point of error number eleven.

We affirm that part of the trial court’s judgment granting the appellee’s motion for summary judgment as to the bad faith and other claims severed from appellant’s case. We reverse that part of the judgment denying appellant’s claim for expenses for medical treatment furnished to Bradley Graves and remand the case for trial.