James R. Gammill and Debra Diane Gammill v. B. Thomas McElroy--Appeal from 67th District Court of Tarrant County

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-02-388-CV

JAMES R. GAMMILL AND APPELLANTS

DEBRA DIANE GAMMILL

V.

B. THOMAS MCELROY APPELLEE

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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION //

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In this legal malpractice action, James R. Gammill and Debra Diane Gammill appeal the no-evidence summary judgment motion granted in favor of their former counsel, B. Thomas McElroy. The Gammills argue that the trial court erred in granting summary judgment because the judgment is based on the erroneous exclusion of the testimony of appellants expert witnesses. We will affirm.

The Gammills sued Jack Williams Chevrolet, Inc. and American Isuzu Motors, Inc. for injuries to Mrs. Gammill and their son, Curtis Gammill, and for the death of their daughter, Jaime Michelle Gammill, in an accident involving the family s Isuzu Trooper. The trial court struck the Gammills experts and granted the defendants summary judgment on the Gammills claims. Those rulings were upheld on appeal. See Gammill v. Jack Williams Chevrolet, Inc., 983 S.W.2d 1, 13-15 (Tex. App. Fort Worth 1996), aff d, 972 S.W.2d 713 (Tex. 1998).

Thereafter, the Gammills sued McElroy, one of their attorneys in the original suit, alleging negligence, breach of contract, breach of fiduciary duty, and Deceptive Trade Practices Act violations. The trial court issued a scheduling order setting February 28, 2002 as the deadline for the Gammills to designate their expert witnesses and to provide the experts names, addresses, phone numbers, the subject matter of their testimony, and their expert reports. The Gammills submitted a list of experts on February 28 that included names, addresses, phone numbers, and general categories of expertise for their legal malpractice expert, Michael Mosher, and several other experts. They did not, however, give the subject matter of these experts testimony, and there were no expert reports provided with, referenced by, or referred to in the designation. Mosher s preliminary report was filed on March 5, five days after the deadline. Mosher stated in the report, I have only recently been asked to give an opinion as an expert witness. Therefore, I have not reviewed all the information that I believe will be necessary to render a final opinion.

McElroy moved to strike Mosher s expert testimony due to his untimely designation. The trial court held a hearing on March 28 and denied the motion to strike, but required the Gammills to make Mosher available for deposition within thirty days. Although Mosher gave his deposition on April 23, he stated that his report was still preliminary and that I ve got to get the rest of the materials in this case. He had not yet seen the depositions of Lowry and Huston, which he considered to be key. Mosher stated that his opinions might change after he reviewed these additional materials.

On June 7, McElroy moved to strike Mosher and the Gammills other experts testimony on various grounds, including that the experts reports had not been timely provided. As of that date, the Gammills still had not supplemented or updated Mosher s original report.

On July 14, 2002, the trial court granted McElroy s motions and ordered that the Gammills could not designate any other legal malpractice experts. McElroy then moved for a no-evidence summary judgment on several grounds, including that there was no evidence that he had breached the standard of care applicable to him as an attorney. The Gammills moved for reconsideration of the trial court s orders striking their experts testimony. In their response to McElroy s summary judgment motion, the Gammills merely stated, Unless and until the Court sets aside its previous ruling concerning experts, Plaintiffs have no response to the No Evidence Motion for Summary Judgment. The trial court denied the Gammills motions for reconsideration and granted McElroy a no-evidence summary judgment on August 19, 2002. This appeal followed.

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

In Texas, a plaintiff in a legal malpractice suit is required to present expert testimony regarding the standard of skill and care ordinarily exercised by an attorney. Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App. Austin 2002, pet. denied). Therefore, if the exclusion of Mosher s testimony was not an abuse of the trial court s discretion, the Gammills had no evidence to support their legal malpractice claim, and the summary judgment for McElroy was proper.

In reviewing a trial court s decision to strike expert testimony due to untimely designation, we apply an abuse of discretion standard. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994); Ersek, 69 S.W.3d at 270. We must not disturb the trial court s ruling unless the trial court acted arbitrarily and unreasonably, without reference to any guiding rules or principles. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

Where, as here, a party fails to amend or supplement a discovery response in a timely manner, the undisclosed information must be excluded unless good cause is shown for the failure to timely disclose or unless the failure to disclose will not unfairly surprise or prejudice the other parties. Vingcard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847, 856 (Tex. App. Fort Worth 2001, pet. denied) (op. on reh g). The burden of establishing good cause or lack of unfair prejudice or surprise is on the party seeking to introduce the evidence. Tex. R. Civ. P. 193.6(b).

In this case, the Gammills never provided McElroy with anything other than a preliminary report from Mosher, which Mosher himself testified was subject to change based on additional key evidence that he intended to review. The Gammills have not made any argument or pointed to any evidence for their failure to update Mosher s report, nor have they established that McElroy would not be unfairly surprised or prejudiced by their repeated failure to comply with the trial court s scheduling order. The Gammills had the opportunity to make these arguments or submit relevant evidence in response to McElroy s no-evidence summary judgment motion, but chose not to do so.

Considering these facts, we cannot say that the trial court abused its discretion in striking Mosher s expert testimony. Without this testimony, the Gammills lacked any evidence of McElroy s alleged legal malpractice. Therefore, the summary judgment for McElroy is proper. We overrule the Gammills point and affirm the trial court s judgment.

JOHN CAYCE

CHIEF JUSTICE

PANEL A: CAYCE, C.J.; GARDNER, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment).

DELIVERED: November 13, 2003