AMERICAN GUARANTEE & LIABILITY as Subrogee of Greenville Independent School District, Appellant v. GENLYTE THOMAS GROUP, L.L.C., Appellee

AFFIRMED; Opinion Filed May 27, 2008.
 
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00530-CV
............................
AMERICAN GUARANTEE & LIABILITY as Subrogee of
Greenville Independent School District, Appellant
V.
GENLYTE THOMAS GROUP, L.L.C., Appellee
.............................................................
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 68,461
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Francis, and Lang
Opinion by Justice Lang
 
 
        This case involves a property damage action arising from a fire at Greenville High School. Following a jury trial, the trial court entered a take-nothing judgment in favor of appellee Genlyte Thomas Group, L.L.C. Appellant, American Guarantee & Liability as subrogee of Greenville Independent School District, asserts three issues on appeal: (1) the trial court erred in excluding the testimony of appellant's expert at trial based on a failure to designate such expert pursuant to Texas Rule of Civil Procedure 194; (2) by objecting to appellant's supplemental expert witness discovery for the first time at trial without filing any pretrial objections or motions, appellee waived its objections as to inadequate supplemental discovery responses and invited the trial court to commit error by playing “gotcha”; and (3) the trial court erred in imposing a de facto death penalty discovery sanction against appellant by excluding appellant's only evidence of a defective product without first attempting a lesser alternative.
        Based on the analysis below, we conclude appellant's first issue has not been preserved for this Court's review. Therefore, we decide that issue against appellant. In light of our disposition of appellant's first issue, we need not reach appellant's second and third issues. The trial court's judgment is affirmed. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled.
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On February 17, 2003, a fire occurred at Greenville High School. Greenville High School reported the fire to appellant, with which it had a commercial insurance policy at the time, and appellant began an investigation into the cause of the fire. After a fire investigator hired by appellant concluded the fire started at or near a fluorescent light fixture manufactured by appellee, Mark Goodson, an electrical engineer, was retained by appellant to inspect that light fixture and other potential electrical fire ignition sources.
        Appellant filed this suit against appellee and two other defendants   See Footnote 1  on December 30, 2004. At the time of trial, causes of action asserted against appellee included negligence, strict products liability based on design and marketing defects, and breach of warranty. The case was tried before a jury. During testimony by Goodson as part of appellant's case in chief, the following ensued:
[APPELLANT'S
COUNSEL]:
 
Based upon your evaluation of the Genlyte manufactured flourescent [sic] light fixture, with the instant start electronic ballast, do you have an opinion as to whether or not there is a design defect in that product? [APPELLEE'S
 
COUNSEL]:
 
Your Honor, I have an objection and I need to take the witness on voir dire. I don't think his qualifications have been established to give an opinion as to design.
 
THE COURT:
 
All right. Do you want a chance to offer any other predicate?
 
                        
[APPELLEE'S
COUNSEL]:
 
Yes, Your Honor.
 
[predicate offered]
 
. . . .
[APPELLEE'S
COUNSEL]:
 
Mr. Goodson, it's true isn't it, that you have no particular expertise with respect to the design of light fixtures in general or flourescent fixtures in particular?
 
[GOODSON]:
 
Correct.
 
[APPELLEE'S
COUNSEL]:
 
And you have not worked on the design of either a flourescent fixture or electronic ballast, is that correct?
 
[GOODSON]:
 
Correct.
 
[APPELLEE'S
COUNSEL]:
 
Your Honor, I don't believe the predicate has been laid. And I have a second objection for which I need to approach the bench on.
 
. . . .
THE COURT:
 
All right. Come up to the bench.
 
[APPELLEE'S
COUNSEL]:
 
Your Honor, Mr. Goodson was designated as a cause and origin expert. And he has not been designated as a design expert. In the designation of testifying experts filed by plaintiff and in the latest supplemental response to request for disclosure relating to this witness [sic].
 
[APPELLANT'S
COUNSEL]:
 
We've also supplemented that, Your Honor, with an affidavit directly related to his opinion regarding design defect and that was included in the motion for summary judgment response, which the court has already entertained.
 
[APPELLEE'S
COUNSEL]:
 
They had an affidavit response motion for summary judgment, but have never formally designated him as an expert in that area in-in the discovery.
 
THE COURT:
 
All right. It seems like he would be excluded from that testimony. Sustain. All right. Back to the jury.
 
        At the conclusion of appellant's case in chief, the trial court granted appellee's motion for directed verdict as to the causes of action for negligence and strict products liability based on design and marketing defects, but denied appellee's motion with respect to appellant's breach of warranty cause of action. The jury found no defect that was a proximate cause of the fire, and the trial court entered a take-nothing judgment against appellant. A motion for new trial was filed by appellant and was overruled by operation of law. This appeal timely followed.
II. EXCLUSION OF EXPERT TESTIMONY
 
        In its first issue, appellant contends the trial court erred in “excluding Goodson's testimony at trial based on a failure to designate him pursuant to Rule 194.” Appellant asserts, “For any testifying witness, Rule of Civil Procedure 194 requires a party to provide the subject matter on which the expert will testify and the general substance of the expert's mental impressions and opinions and a brief summary of the basis for the opinions.” Also, according to appellant:
[Appellee] made a disingenuous objection at trial claiming that [appellant's] expert designation for its electrical engineer was too narrow and, consequently, the expert's testimony should be severely limited. [Appellant's] counsel immediately pointed out that the designation had been formally supplemented and, more importantly, that the expert had authored reports, been deposed, and provided a summary judgment affidavit on the testimony that [appellee] was trying to exclude.
 
        Appellant asserts the trial court had considered the product defect evidence at issue, without objection by appellee, during a no-evidence motion for summary judgment hearing only a few months before trial. Further, appellant contends the trial court failed to conduct any analysis using the necessary factors required by the rules of civil procedure before excluding Goodson's testimony. According to appellant, the trial court “abused its discretion by sustaining the objection and effectively ended the trial by excluding [appellant's] only expert testimony on the existence of a product defect-a necessary element on each of [appellant's] claims.” Appellant contends that because the trial court's error resulted in the rendition of an improper judgment, this Court should reverse and remand for a new trial on the merits.
        Appellee asserts appellant is not entitled to appellate review of the trial court's exclusion of Goodson's testimony because appellant “failed to preserve its right to claim error.” Appellee argues, in part, that it objected at trial to the admission of Goodson's “defect opinion” on two independent grounds: (1) appellant had not shown Goodson to be qualified to render such an opinion; and (2) appellant had failed to include such opinions in the expert designation mandated by the trial court's scheduling order. According to appellee:
The trial court granted [appellee's] objections and excluded the testimony without specifying the basis for its order. On appeal, appellant only argues that the trial court should not have excluded the testimony based on issues relating to the scope of [appellant's] designation. [Appellant] does not attack the trial court's decision regarding Mr. Goodson's lack of qualifications. Because the trial court's order must be sustained on the unattacked independent qualifications basis, [appellant] cannot show harmful error and, therefore, has not preserved its complaint for review.
 
         A. Applicable Law
        An appellant's brief “must state concisely all issues or points presented for review.” Tex. R. App. P. 38.1(e); see also Myers v. Wright, 224 S.W.3d 466, 469 (Tex. App.-Dallas 2007, no pet.) (party waived claims as to which no issues were brought forward on appeal). Further, no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).
        When an appellee urges several objections to particular evidence and, on appeal, the appellant complains of the exclusion of such evidence on only one of those bases, “the appellant has waived that issue for appeal because he has not challenged all possible grounds for the trial court's ruling that sustained the objection.” Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 522 (Tex. App.-Dallas 2007, no pet.) (citing Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.-Dallas 2006, no pet.)); see also Britton v. Tex. Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (because appellate court was required to accept validity of unchallenged independent ground that fully supported complained-of ruling, any error with respect to challenged ground was harmless) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)); cf. Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977) (judgment must be affirmed if appellant does not challenge each separate and independent ground of recovery).
B. Application of Law to Facts
 
        The record shows appellee objected to Goodson's testimony at trial regarding product design on two independent grounds: (1) Goodson was not qualified to opine as to that issue; and (2) appellant had not designated Goodson as a design expert pursuant to the trial court's scheduling order. After appellee had made both objections, the trial court ruled, “All right. It seems like he would be excluded from that testimony. Sustain. All right. Back to the jury.”
        Appellant argues in its reply brief before this Court that “the plain language of the exchange between the trial court and counsel makes clear the trial court was sustaining Appellee Genlyte's objection that Mr. Goodson's testimony would have exceeded the scope of the expert witness designation.” However, the language of the trial court, on its face, did not limit its ruling to one of the two grounds upon which appellee had objected. In addition, appellant contends appellee “waived any objection to the exclusion of Mr. Goodson's testimony based on his qualifications by failing to file a pretrial motion as required by the agreed scheduling order signed by all parties.” Therefore, appellant argues, “the trial court implicitly overruled this objection in the event this Court finds that such an objection was made.” However, appellant cites no authority in support of this argument. See McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.-Dallas 2001, pet. denied) (appellant failed to adequately brief ground for which he offered no legal analysis and cited only generally to a law review) (citing Tex. R. App. P. 38.1).
        Because the trial court's ruling that sustained appellee's objection to Goodson's testimony could have been based on the independent ground that Goodson was not qualified to render an opinion as to product design, rather than a failure to designate Goodson pursuant to Rule 194, and appellant has not challenged both possible independent grounds for sustaining the objection, we conclude appellant has not preserved that issue for this Court's review. See Bradford Partners, 231 S.W.3d at 522; Cantu, 195 S.W.3d at 871. Therefore, without reaching the merits of appellant's contentions, we decide appellant's first issue against it. Further, because appellant's second and third issues pertain only to the trial court's exclusion of Goodson's trial testimony based on the “failure to designate” ground asserted in appellant's first issue, we need not reach appellant's second and third issues.
III. CONCLUSION
 
        We conclude that because appellant has not challenged each possible independent ground for the trial court's ruling sustaining appellee's objection to the testimony of appellant's expert, appellant has not preserved that issue for this Court's review. Appellant's first issue is decided against it. We need not reach appellant's second and third issues. The trial court's judgment is affirmed.
                                                          
                                                                                                                                                             -----------------------
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
070530F.P05
 
Footnote 1 According to the trial court's judgment, appellant settled its claims against the two other defendants prior to trial and the trial court “dismissed those settling Defendants from this action by way of written order.”