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Allday v. Malone & Hyde, Inc.
December 7, 1995
Unpublished Opinion

Allday v. Malone & Hyde, Inc.

Court of Appeals of Texas, Beaumont.

Roy ALLDAY, Appellant


MALONE & HYDE, INC. and Madix, Inc., Appellees

No. 09-94-138CV.


Dec. 7, 1995.


Rehearing Overruled Jan. 4, 1996.

On Appeal from the 221st District Court Montgomery County, Texas District Court No. 91-06-02165-CV

Before STOVER, JJ.



*1 Roy Allday sued Malone & Hyde, Inc. and Madix, Inc., appellees, alleging he was injured when shelving in his employer’s store fell. The shelves had been manufactured by Madix and specified and installed by Malone & Hyde, together with Madix, in a store formerly owned and operated by Malone & Hyde.

On the day of trial, Allday filed a motion for leave of court to offer the testimony of five witnesses. The court denied the motion and the jury trial began. After the conclusion of all the evidence, appellees moved for a directed verdict. Malone & Hyde’s motion was granted. Madix’ motion was granted as to the negligence claim but denied as to the product liability claim. The jury found there was a design defect in the shelving when it left the possession of Madix, which was a producing cause of the occurrence. The jury further found a 70% contributing cause against Allday, resulting in a take nothing judgment.

Allday’s first point of error complains the trial court erred in refusing to admit the deposition testimony of six witnesses because there was “good cause” for the admittance despite such witnesses not being identified in responses to discovery. Appellees initially argue Allday has waived his right to complain because the excluded testimony was not properly offered as a bill of exception. Allday’s counsel stated:

[W]e want to make a tender of the portions of the deposition testimony of Mr. Mike Wiley. And that deposition was only taken last Friday, and I really think I ought to be able to put on deposition testimony by Mr. Wiley. And also the depositions of Mr. Carl Wilson, Dan Jarvis, P.J. Tillory, Gene Colley and Orhan Uzal.

After extended argument about the witnesses, the court finally concluded the witnesses would not be allowed to testify. Allday’s counsel then stated: “And on behalf of the intervenor, Mr. Solcher [intervenor’s counsel] is tendering the testimony of ...” (the six witnesses). And those depositions have been filed with the Court-the originals of those depositions so that the record is complete there.” The court then stated: “Yes, sir. You may have them on your bill-for purposes of your bill in testing my ruling.”

While it is unclear whether the court was allowing the depositions as a bill for Allday or for the intervenor, appellees did not seek a clarification or raise this issue with the trial court. Therefore, we will consider the court’s action as allowing the depositions as a bill of exception for both Allday and the intervenor.

This court can only set aside a trial court’s decision to exclude testimony if the trial court abused its discretion. Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex.1982).

*2 Allday asserts “good cause” because the identity of each of the witnesses had been known to appellees for over a year and five of the depositions had been taken by that time; all of the witnesses were known by appellees for over 30 days before trial; and all of the witnesses had been identified in appellees’ discovery responses for between 30 days and 23 months prior to trial. Allday relies upon Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990) that the fact a witness has been deposed does not in itself establish good cause, but held the additional factor that Bynum was a named party could combine to satisfy the good cause requirement. Consequently, the Supreme Court has enunciated only two instances to guide lower courts on determining good cause. Neither of these instances apply to the witnesses in this case. Consequently, the trial court did not abuse its discretion in excluding the witnesses on behalf of Allday. Point of error one is overruled.

The second point complains the trial court erred in refusing to admit the deposition testimony of six witnesses when offered by the intervenor since the intervenor was not required to identify the witnesses. Appellees argue Allday has no standing to assert this point.

Allday filed suit June 21, 1991. Argonaut Southwest Insurance Company, through a separate law firm, filed its intervention June 25, 1993, seeking recovery for workers compensation benefits paid to Allday. Final judgment was entered January 4, 1994.1 Allday perfected his appeal March 8, 1994. Argonaut failed to perfect any appeal.

Allday argues Argonaut should be treated as a discrete party, separate and distinct from himself, citing CNL Financial Corp. v. Hewlett, 539 S.W.2d 176 (Tex.Civ.App.-Beaumont 1976, writ ref’d n.r.e). Point of error two is overruled. The judgment of the trial court is affirmed.




Although Argonaut was not mentioned in the judgment, under Coastal Refining & Marketing v. Latimer, 838 S.W.2d 570 (Tex.App.-Corpus Christi 1992, no writ).

End of Document