Court of Appeals of Texas, Dallas.

Janet M. MORNING, Appellant

v.

MID-STATES SERVICES, INC., Appellee

No. 05-94-00012-CV.

|

March 28, 1996.

Before MALONEY, MORRIS and HANKINSON, JJ.

OPINION

MORRIS

*1 Janet M. Morning brought suit against Mid-States Services, Inc. alleging she was terminated as an employee in violation of article 8307c of the Texas Workers’ Compensation Act. On appeal she challenges a jury verdict in favor of Mid-States. In five points of error, Morning contends the trial court erred in: (1) failing to submit her requested jury instructions; (2) excluding the testimony of one of her witnesses; (3) failing to sanction Mid-States; (4) failing to grant her motion for mistrial; and (5) failing to grant her motion for continuance. For the reasons set forth below, we affirm the trial court’s judgment.

In her first point of error, Morning argues the trial court erred in refusing to submit her requested jury instructions on causation under article 8307c of the Texas Workers’ Compensation Act. Article 8307c reads in pertinent part:

No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.

See Act of April 29, 1971, 62nd Leg., R.S., ch. 115, § 1, 1971 Tex. Gen. Laws 884-85 (formerly Tex.Rev.Civ. Stat. Ann. art. 8307c (Vernon Supp.1992)), repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(1), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code Ann. § 451.001 (Vernon Pamph.1996)).

Morning’s original proposed jury charge included an instruction that tracked the language of the statute. In an amended proposed charge, Morning requested two additional instructions. The additional instructions stated that Mid-States violated the Texas Workers’ Compensation Act if Morning’s compensation claims were “causally connected” or “contributed to” her discharge. The trial court refused to submit the additional instructions and submitted an instruction that closely tracked the language of article 8307c.¹

The Texas Rules of Civil Procedure require a trial court to “submit such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex.R. Civ. P. 277. The court has considerable discretion in implementing this rule. Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 739 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Indeed, the court’s discretion in submitting instructions and definitions is even broader than its discretion in submitting jury questions. Id.

When statutory violations are the basis of jury questions, the questions should be submitted in terms as close as possible to the statutory language. See City of Brownsville v. Pena, 716 S.W.2d 677, 680 (Tex.App.-Corpus Christi 1986, no writ). The court must define words and phrases that have a distinct legal meaning. Security Sav. Ass’n v. Clifton, 755 S.W.2d 925, 933 (Tex.App.-Dallas 1988, no writ). Explanatory instructions, however, no matter how interesting or relevant to the case, should be submitted only when, in the sole discretion of the trial court, they will aid and assist the jury in answering a submitted question. Id. A trial court’s refusal to submit requested jury instructions will not be reversed absent an abuse of discretion. City of Houston v. Leach, 819 S.W.2d 185, 197 (Tex.App.-Houston [14th Dist.] 1991, no writ). A trial court abuses its discretion only when it acts without reference to any guiding principle. Weitzul Constr., Inc. v. Outdoor Environs, 849 S.W.2d 359, 365 (Tex.App.-Dallas 1993, writ denied). In order to show an abuse of discretion, Morning must demonstrate a denial of her rights that was reasonably calculated to cause, and probably did cause, the rendition of an improper verdict. See id.

*2 Morning argues the trial court abused its discretion in refusing her proposed instructions because the charge failed to provide the jury any guidance about causation. As stated above, the submitted jury charge closely tracked the language of article 8307c. Article 8307c includes a causation element in that it provides relief to persons discharged because they have filed a claim or instituted a proceeding under the Texas Workers’ Compensation Act. See Tex.Rev.Civ. Stat. Ann. art. 8307c (Vernon Supp.1992). Because the charge in this case included the statutory language, it provided the jury guidance with respect to causation. Morning’s requested instructions were merely shades of the instruction already given. As such, they were properly denied even though they were correct statements of the law. See Louisiana & Arkansas Ry. Co. v. Blakely, 773 S.W.2d 595, 599 (Tex.App.-Texarkana 1989, writ denied).

Morning notes that terms such as “producing cause” and “proximate cause” are routinely defined for the jury in tort cases. These terms, however, have specific legal meanings and must be defined. See Security Sav. Ass’n, 755 S.W.2d at 933. There are no similar distinct legal terms in the jury instruction at issue that require definitions.

In attempting to show the trial court’s action probably caused the rendition of an improper verdict, Morning argues it is likely the jury would have reached a different verdict if it had been instructed that she was entitled to relief even if her workers’ compensation claim was only a factor in her termination and not the sole cause. In making this argument, Morning is contending, in effect, that the instruction given in this case is misleading or incorrectly sets forth the causation element of her claim. The charge states the causation factor as it is set forth in the statute. Therefore, the instruction was proper. See City of Brownsville, 716 S.W.2d at 680. Nothing in article 8307c or the charge states that a plaintiff’s pursuit of a workers’ compensation claim must be the sole reason for his termination. Accordingly, we conclude that the trial court’s refusal to give Morning’s requested instructions did not result in an improper verdict.

Finally, Morning argues the trial court’s refusal to give her proposed jury instructions was harmful because statements made by counsel confused the jury about causation. During voir dire examination, both counsel for Morning and Mid-States made various statements about the causation element of Morning’s claim. The trial court informed the jury panel members that the court would instruct them on the law and that they should not “take the law” from statements of counsel. As discussed above, the jury charge correctly set forth the statutory causation element for Morning’s article 8307c claim. Accordingly, any confusion that might have been caused by counsel’s argument was cured by the trial court’s instruction.

Based on the foregoing, we conclude Morning has failed to show the trial court abused its discretion or acted without reference to any guiding principles. We overrule Morning’s first point of error.

*3 In her second point of error, Morning contends the trial court erred in excluding the testimony of Kim Whitaker, a former employee of Mid-States. Six weeks before trial, Morning supplemented her answers to Mid-States’s interrogatories. In response to an interrogatory requesting the name and address of persons with knowledge of relevant facts, she identified Whitaker. Although counsel for Morning conceded he knew that Whitaker no longer worked for Mid-States, Morning listed Whitaker’s address and telephone number as the same as Mid-States. In a separate interrogatory, to which Morning did not object, Mid-States asked what facts were known by those persons identified as having relevant knowledge. Morning completely failed to respond to this interrogatory with the facts known by Whitaker. At trial, Mid-States moved to exclude Whitaker’s testimony on the ground that Morning failed to respond fully and properly to its interrogatories. The trial court granted Mid-States’s motion.

Under rule 215(5) of the Texas Rules of Civil Procedure, a party who fails to respond or supplement his response to a discovery request is not entitled to present the evidence called for in the request or the testimony of the person having knowledge of discoverable matter absent a showing of good cause sufficient to require admission. Tex.R. Civ. P. 215(5). Exclusion of the evidence is automatic unless the trial court finds the failure to comply with discovery is excused by difficult or impossible circumstances. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex.1992). The trial court has discretion to determine whether the offering party has met his burden of showing good cause. Id. The court has no discretion, however, to admit evidence excluded by rule 215(5) without a showing of good cause. Id.

Morning argues good cause existed for her failure to disclose the facts known by Whitaker because Mid-States never disclosed to her that Whitaker was a person with knowledge of relevant facts. Morning suggests that Mid-States purposely concealed Whitaker’s identity as a witness, and it is for this reason that Morning was unable to discover the facts known by Whitaker until immediately before trial. Morning fails to point to any evidence in the record, however, that Mid-States knew Whitaker possessed relevant knowledge or that it hid this information from her. See Tex.R.App. P. 74(f)

Moreover, at the hearing on the motion to exclude, Morning’s counsel testified he was aware of Whitaker’s potential involvement in the case as early as May 17, 1993. Morning did not supplement her discovery responses to list Whitaker as a person with knowledge of relevant facts until July 2, 1993. Morning’s counsel further testified that he made no efforts to locate Whitaker until August 13, 1993, five days before trial. Morning’s counsel obtained Whitaker’s correct address through an interview with another witness and conceded that he could have spoken to the witness earlier. Based on these facts, the trial court could have concluded that Morning did not make a good faith effort to locate Whitaker to determine her knowledge of relevant facts and, therefore, was not entitled to the benefits of the good cause exception. See Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex.1989), cert. denied, 493 U.S. 1074 (1990).

*4 Finally, Morning contends the trial court erred in granting the motion to exclude Whitaker’s testimony because she timely listed Whitaker as a person with knowledge of relevant facts. In making this statement, Morning appears to be arguing that there was good cause to allow Whitaker to testify because Mid-States was not surprised by her as a witness. The Texas Supreme Court has routinely held that lack of surprise alone is not sufficient to constitute good cause. See Alvarado, 830 S.W.2d at 915; Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671 (Tex.1990). We conclude Morning has failed to show the trial court abused its discretion in excluding Whitaker’s testimony. We overrule her second point of error.

In her third point of error, Morning contends the trial court erred in refusing to sanction Mid-States for its failure to disclose Whitaker as a person with knowledge of relevant facts. The specific sanction requested by Morning was the striking of Mid-States’s motion to exclude Whitaker’s testimony. Because Mid-States never sought to introduce Whitaker’s testimony at trial, the automatic sanction of exclusion of Whitaker’s testimony is not at issue with regard to Mid-States. Therefore, we examine only whether the trial court abused its discretion.

The trial court has wide discretion with regard to discovery sanctions. See Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). A ruling on such sanctions will be set aside only upon a showing that the trial court “clearly” abused its discretion. Hanley v. Hanley, 813 S.W.2d 511, 516 (Tex.App.-Dallas 1991, no writ).

In her brief, Morning provides no argument explaining why she believes the trial court erred in failing to sanction Mid-States. Morning states only that she believes Mid-States’s discovery responses were evasive. As stated above, Morning fails to point to any evidence in the record showing that Mid-States purposefully concealed Whitaker’s identity. Finally, Morning cites no authority to support her point of error. See Tex.R.App. P. 74(f). We conclude Morning has failed to show the trial court abused its discretion in refusing to sanction Mid-States. We overrule her third point of error.

In her fourth and fifth points of error, Morning contends the trial court erred in failing to grant her motion for continuance and her motion for mistrial. Morning generally argues that the granting of one of these motions was the only fair and equitable way the trial court could prevent the exclusion of Whitaker as a witness from being an “injustice.”

We begin our analysis by noting that rule 251 of the Texas Rules of Civil Procedure requires a movant to support a motion for continuance by affidavit showing sufficient cause. Tex.R. Civ. P. 251. Failure to comply with this rule creates a rebuttable presumption that the trial court did not abuse its discretion in denying the motion. Moffitt v. DSC Fin. Corp., 797 S.W.2d 661, 663 (Tex.App.-Dallas 1990), writ denied per curiam, 815 S.W.2d 551 (Tex.1991). On the other hand, the failure to grant a motion for mistrial will only be overturned if it caused the rendition of an improper judgment. See Guerrero v. Smith, 864 S.W.2d 797, 800 (Tex.App.-Houston [14th Dist.] 1993, no writ). A trial court is empowered to grant in its discretion either a continuance or a mistrial to prevent an irremediable injustice at trial resulting from the automatic exclusion of evidence required under rule 215(5). See Alvarado, 830 S.W.2d at 915-16.

*5 In this case, Morning’s motion for continuance was made orally during trial after the trial court excluded Whitaker’s testimony. The motion for continuance was not supported by an affidavit or sworn testimony. Accordingly, we presume the trial court did not abuse its discretion in denying the motion to continue. See Moffitt, 797 S.W.2d at 663. On the record before us, Morning has failed to rebut that presumption. Morning relies only on the “circumstances of the failure to designate Whitaker by Mid-States” to support her claim that the trial court abused its discretion in denying her request for continuance. We have already pointed out that Morning failed to show Mid-States knew Whitaker had relevant knowledge or hid information from her. The trial court could have concluded that the exclusion of Whitaker’s testimony was due to Morning’s lack of diligence rather than any misconduct on the part of Mid-States.

Morning makes the same argument to support her assertion that the trial court should have granted her request for a mistrial. She does not argue that the trial court’s refusal to grant her a mistrial caused the rendition of an improper judgment. We similarly reject Morning’s argument about her request for a mistrial.

We conclude the trial court’s refusal to allow Whitaker to testify did not operate as an “injustice” to Morning. Therefore, based on the facts of this case, we conclude the trial court did not abuse its discretion in refusing to grant Morning’s motions for continuance and mistrial. We overrule her fourth and fifth points of error.

We affirm the trial court’s judgment.

	Footnotes
1		The jury instruction submitted in this case stated: The Texas Workers [sic] Compensation Act provides that no person may discharge or in any other manner discriminate against an employee because the employee has in good faith filed a claim, or instituted, or caused to be instituted in good faith, any proceeding under the Texas Worker’s [sic] Compensation Act, or has proceeding [sic] under the Texas Workers’ Compensation Act.