TRI-FLO INTERNATIONAL, INC. v. BRIAN JACKSON D/B/A BRICO PUMP COMPANY--Appeal from 410th District Court of Montgomery County

NUMBER 13-01-472-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

TRI-FLO INTERNATIONAL, INC.,   Appellant,

v.

BRIAN JACKSON D/B/A BRICO PUMP COMPANY, Appellee.

On appeal from the 410th District Court

of Montgomery County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa and Wittig[1]

Opinion by Justice Wittig

In a single issue, Tri-Flo International, Inc., complains of a pre-trial discovery ruling by the trial court. The trial judge granted two motions for leave to supplement discovery requests, one the eve of trial and another a week before. We affirm.

I

January 26, 2001, was the ordered discovery cut off date. On February 20, 2001, appellee, Brian Jackson, d/b/a Brico Pump Company, was granted his first leave to file supplemental responses to discovery. These supplementations were in response to Tri-Flo=s request for discovery under Rule 194. See Tex. R. Civ. P. 194. Prior to trial on February 26, 2001, appellee presented another motion to supplement. Both motions were granted after lengthy hearings and considerable inquiry by the trial judge.

The claim by appellee was essentially one for accounting in order to determine the amount, if any, due from Tri-Flo to Jackson. The sued-upon oral agreement provided for a division of profits between the parties. The amount of profits due were to be derived after deducting net costs by Tri-Flo. On December 12, 2000, Tri-Flo was ordered to furnish an accounting to include such data. Tri-Flo produced an interim accounting but arguably continued to be out of compliance with the court=s prior order. Additional responsive documentation was produced by Tri-Flo as late as February 7, 2001. In all, Tri-Flo produced at least three different accountings, spanning pre-litigation through less than two weeks before trial. After Tri-Flo=s last accounting, Jackson supplemented his response within two weeks of receiving this new evidence. In both instances when the trial court allowed supplementation, it also allowed Tri-Flo further discovery by way of depositions. Additionally, the trial court allowed Tri-Flo to amend its pleadings on the day of trial.[2]

II

As best we read Tri-Flo=s argument, it claims Jackson was allowed to introduce a new method of calculating damages and amount of damages. In support of its argument, Tri-Flo cites Morrow v H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). Morrow holds that to determine if there is an abuse of discretion, we must look to see if the court acted without reference to any guiding rules and principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)). AThese guiding principles can be found in the rules and in Yeldell v. Holiday Hills Retirement & Nursing Ctr., Inc., 701 S.W.2d 243 (Tex. 1985).@ Morrow, 714 S.W.2d at 298. Yeldell in turn states that the party offering evidence has the burden of showing good cause to the trial court. Yeldell, 701 S.W.2d at 246-47. We agree. Tri-Flo also cites Melendez v. Exxon Corp., 998 S.W.2d 266, 275-76 (Tex. App.BHouston [14th Dist.] 1999, no pet.). In that case, Melendez filed his discovery response naming a witness less than thirty days before trial and thus, could avoid exclusion of the evidence only if he established good cause for the delay. Id. at 276.[3] Like Jackson, Melendez=s counsel also argued the late discovery was due to late documentation and evidence by Exxon. Id. However, Melendez=s counsel also admitted awareness of the potential witness in March but did not explain the delay until June to supplement the discovery response. Id. Thus, Melendez did not establish good cause to allow the late supplementation of the discovery response listing the witness. Id.

Jackson responds that the trial court did not abuse its discretion because there was both good cause and no surprise. Tex. R. Civ. P. 193.6(a). Tri-Flo=s documents were the only substantiating exhibits admitted in evidence, save a damage summary. Jackson testified that prior to February 7, 2001, he only had an interim accounting. Jackson only received items of past claims, time sheets, spread sheets and information about retainage in February. While his counsel, Dwayne Corley probably received Tri-Flo=s late filing some thirteen days before trial, Jackson himself was out of the country. Corley told the judge it was not until the Friday before trial that he and Jackson were able to confer and supplement the damage calculation. The leave for late supplementation was then immediately filed. The trial court then allowed a late deposition of Jackson before trial.

III

A party who fails to respond to or timely supplement his response to a discovery request shall not be entitled to offer testimony of a witness having knowledge of a discoverable matter (except a named party), or introduce the material or information not timely disclosed, unless the trial court finds good cause sufficient to require admission, or determines the other party will not be unfairly surprised or prejudiced. Tex. R. Civ. P. 193.6(a). The burden to establish good cause or lack of surprise is on the party offering the witness. Tex. R. Civ. P. 193.6(b). The trial court has discretion to determine whether the offering party met this burden. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 914 (Tex. 1992). Even if the offering party does not carry this burden, the trial court may grant a continuance or temporarily postpone the trial to allow a response and to allow opposing parties to conduct discovery regarding any new information. Tex. R. Civ. P. 193.6(c); Snider v. Stanley, 44 S.W.3d 713, 718 (Tex. App.BBeaumont 2001, pet. denied).

Rule 193.6 provides three alternatives to the prior draconian sanctions of automatic exclusion for lack of "good cause." The requirements now include the additional choices of showing a (1) lack of unfair surprise or (2) unfair prejudice in addition to the alternative of showing a (3) lack of "good cause." See Tex. R. Civ. P. 193.6. Thus, the burden of a party who is seeking to introduce a witness, is reduced. See Elliott v. Elliott, 21 S.W.3d 913, 922 n7 (Tex. App.BFort Worth 2000, pet. denied). Under the circumstances presented, we find the trial court did not abuse its discretion in allowing Jackson to testify fully about his damages. In his response to discovery and motion for accounting, Jackson outlined a method of determining damages, gross margins less costs. While he did not furnish a specific amount of damages until shortly before trial, the lack of complete data to calculate his damages was not alleviated until thirteen days before trial. Rule 193.5(b) now provides that an amended or supplemental response must be made reasonably promptly after the party discovers the necessity for such a response. Tex. R. Civ. P. 193.5(b). This was done. The trial court delayed the trial, allowing both discovery by deposition and Tri-Flo to amend its pleadings. Tex. R. Civ. P. 193.6(c). Tri-Flo sought no further relief for itself other than the pleadings amendment and filed no motion for continuance, thus waiving any other such relief. Henderson v. Wellmann, 43 S.W.3d 591, 598 (Tex. App.BHouston [1st Dist.] 2001, no pet.). We hold the trial court did not abuse its discretion in allowing the late supplementation. Morrow, 714 S.W.2d at 298.

The judgment of the trial court is affirmed.

Don Wittig

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed

this 24th day of October, 2002.

[1]Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas Pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1988).

[2] The trial court disallowed one late affirmative defense under the statute of frauds. No complaint is brought forward on this issue. Accordingly, we assume without deciding, this ruling was correct. Appellee was allowed to amend his general denial with other affirmative defenses.

[3] This holding is based upon former rule of civil procedure 166b(6). See Tex. R. Civ. P. 166b(6), 977-978 S.W.2d (Tex. Cases) xxxiii (1984, repealed 1998).