Ligda, Linda v. Watts, Laurence W. and Watts & Associates, Attorneys at Law ( 2002 )

Affirmed and Opinion filed May 30, 2002

Affirmed and Opinion filed May 30, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-00919-CV

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LINDA LIGDA, Appellant

V.

LAURENCE W. WATTS AND

WATTS & ASSOCIATES, ATTORNEYS AT LAW, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 97-00847

O P I N I O N

Appellant Linda Ligda appeals a take-nothing judgment rendered against her and in favor of her former attorneys, appellees Laurence W. Watts and Watts and Associates, Attorneys at Law (collectively AWatts@). Ligda contends the trial court erred by admitting the testimony of a late-designated expert and by admitting medical records obtained after the discovery deadline. Ligda further contends the court erred by refusing to allow her to testify regarding Watts=s representation.  We affirm.

I.  Background

Ligda sued Watts alleging, among other things, violations of the Deceptive Trade PracticesBConsumer Protection Act (ADTPA@). On January 20, 1998, Watts designated expert witnesses in responding to Ligda=s first set of interrogatories.  On April 25, 2000, just 41 days before trial, Watts supplemented his response to the interrogatories and named Dr. Byron Howard as an expert witness for the first time. Before trial, Ligda filed a motion to exclude Dr. Howard=s testimony, alleging that Watts had untimely identified him as an expert witness, as calculated under Rule 190.3(b)(1)(B)(ii).^[1]  See Tex. R. App. P. 190.3(b)(1)(B).  The trial court denied her motion.

During trial, the court overruled Ligda=s objections to admission of the following evidence: (1) Ligda=s medical records, on the ground they were obtained after the discovery deadline; and (2) the testimony of Dr. Howard because he was untimely designated.  Also during trial, the court refused to allow Ligda to testify in support of her allegation that Watts committed unconscionable acts in rendering legal services.

The trial court signed a take-nothing judgment against Ligda.  In two points of error, Ligda appeals the above evidentiary rulings and the trial court=s denial of her motion to exclude evidence.

II.  Discussion

A.  Failure to Exclude Evidence

In her first point of error, Ligda contends the trial court abused its discretion by  denying her motion to exclude the testimony of Dr. Howard and, during trial, admitting his  testimony and extensive medical records over her objection.  Because Ligda=s trial objections, and not her motion to exclude, preserved these complaints for our review, we address only whether the trial court abused its discretion in admitting the evidence during trial and not whether the trial court erred in denying Ligda=s motion to exclude.  See Clark v. Trailways, 774 S.W.2d 644, 647 (Tex. 1989) (holding that a pretrial motion will not preserve a complaint as to the admission of an untimely disclosed witness=s testimony); Welsh v. Welsh, 905 S.W.2d 615, 617 (Tex. App.CHouston [14th Dist.] 1995, writ denied).

We review a trial court=s evidentiary rulings for an abuse of discretion.  See Owens‑Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). The test is whether the trial court acted without reference to any guiding rules or principles.  Id.  We look to the Texas Rules of Civil Procedure to determine whether Watts timely (1) supplemented his designation of expert witnesses; and (2) obtained Ligda=s medical records.  Here, both parties disagree about whether the revised discovery rules apply to these questions.

Generally, absent an express intention to the contrary, procedural rules adopted by the Texas Supreme Court are applied to pending litigation.  Cavitt v. Jetton=s Greenway Plaza Cafeteria, 563 S.W.2d 319 (Tex. Civ. App.CHouston [1st Dist.] 1978, no writ); see Tex. R. Civ. P. 1.  Here, the revised discovery rules have various application dates.  See Order Approving Technical Corrections to the Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98‑9224 (Tex. Dec. 31, 1998), printed in 62 Tex. Bar J. 115 (Feb. 1999).

Ligda argues that the level two discovery plan^[2] of Rule 190.3, under the revised discovery rules, determines the applicable discovery period in this case.^[3]  The comment^[4] to Rule 190 provides that it only applies to cases filed on or after January 1, 1999.  The Supreme Court=s order approving the revisions provides that a court may adopt an appropriate discovery control plan in previously filed cases.  See Order Approving Technical Corrections (4)(b). However, after reviewing the record, including the court=s docket sheets, we find no evidence that the court adopted a discovery control plan, and Ligda does not contend the court did so in her appellate briefing.  Because this case was filed before January 1, 1999, and because nothing in the record suggests the court adopted a discovery control plan in conformity with the new rules, we find that the discovery period is governed by the rules of civil procedure in effect when the case was filed.  Accordingly, we hold that Rule 190.3 does not apply to this case. 

Under former Rule 166(b)(6), the discovery period ended on the date the case was scheduled for trial, June 6, 2000.  See Tex. R. Civ. P. 166b(6) (repealed 1999).  We find that Watts complied with former Rule 166(6)(b) and timely obtained the medical records, in April and May of 2000, before the discovery period ended on the date set for trial, June 6, 2000. Accordingly, we find that the trial court did not abuse its discretion in overruling Ligda=s objection to admission of the medical records as untimely obtained. 

Next, we address Ligda=s complaint that the court erroneously admitted testimony from a witness untimely designated as an expert.  Watts designated expert witnesses in response to Ligda=s first set of interrogatories on January 20, 1998.  Watts later identified Dr. Howard as an expert witness in a supplemental response to the interrogatories.  Current Rule 193.5(b)^[5] applies because Watts supplemented his discovery response after the rules were adopted, and the comments to rule 193.5 provide that A[d]iscovery responses, . . .amendments, . . . and supplementations made prior to Jan. 1, 1999, are not subject to TRCP 193.@ See Tex. R. Civ. P. 193.5 (notes and comments).  Rule 193.5 provides that if a party learns that his discovery response, though complete and correct when made, is no longer complete and correct, he must supplement or amend his response to the extent the discovery sought the identification of expert witnesses.  Tex. R. Civ. P. 193.5(a)(1)B(2). The amended or supplemental response must be made reasonably promptly after the party discovers the necessity for it. Tex. R. Civ. P.  193.5(b).  Moreover, Rule 193.5(b) further requires that, except as otherwise provided by the rules, we should presume an amended or supplemental response made less than 30 days before trial is not reasonably prompt.  Id. 

Watts filed his supplemental discovery response naming Dr. Howard on April 25, 2000, 41 days before the June 6, 2000 trial. Thus, we will not presume that Watts=s supplemental response was untimely.  Moreover, we do not find that the trial court abused its discretion in concluding that Watts supplemented his discovery responses in a reasonably prompt manner.  In his appellate brief, Watts does not disclose when he discovered the need to supplement, and we find no reference to where we might find this information. According to Ligda=s appellate brief, the trial court arguments on Ligda=s motion to exclude were not recorded for the record.  Because we do not know when Watts discovered the need to amend his designation of expert witnesses and what the trial court heard in the hearing, we cannot second-guess the trial court=s conclusion that Watts supplemented his discovery responses reasonably promptly. Accordingly, we do not find that the trial court abused its discretion in overruling Ligda=s objection to the admission of Dr. Howard=s expert testimony.

We overrule Ligda=s first point of error. 

B.  Exclusion of Ligda=s Testimony

In her second point of error, Ligda contends the trial court abused its discretion by refusing to allow Ligda to testify about Watts=s actions in representing her, which bore directly on her claim that Watts committed unconscionable actions or courses of actions that caused damage to Ligda, violating section 17.50 of the DTPA.

As Watts correctly notes, the alleged error was not properly preserved for appellate review because no bill of exceptions was made showing what Ligda=s testimony would have been.  See Smith v. State, 737 S.W.2d 910, 915 (Tex. App.CFort Worth 1987, pet. ref=d).

We overrule Ligda=s second point of error and affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Judgment rendered and Opinion filed May 30, 2002.

Panel consists of Chief Justice Brister and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Ligda argues that under Texas Rule of Civil Procedure 190.3(b)(1)(B)(ii), discovery was closed as early as October 10, 1998 and no later than February 25, 2000.  Under Rule 190.3(b)(1)(B)(ii), discovery is closed at nine months after the earlier of (1) the date of the first oral deposition (May 25, 1999) or (2) the due date of the first response of written discovery (January 19, 1998).  Tex. R. Civ. P. 190.3(b)(1)(B)(i)B(ii)

^[2]  Rule 190 requires that each case be governed by a discovery control plan.  Tex. R. Civ. P. 190.1.

^[3]  Rule 190.3 provides that A[a]ll discovery must be conducted during the discovery period, which begins when suit is filed and continues until (i) the earlier of 30 days before the date set for trial; or (ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery.  Tex. R. Civ. P. 190.3(b)(1)(B).

^[4]  The Supreme Court order approving revision to the Texas Rules of Civil Procedure provides, in part, that the notes and comments appended to the revisions are meant to inform courts= construction and application of the rules.  Order Approving Technical Corrections (2).

^[5]  Before the 1999 amendments, the obligation to supplement discovery responses was found in  Rule 166b(6):

Duty to Supplement. A party who has responded to a request for discovery that was correct and complete when made is under no duty to supplement his response to include information thereafter acquired, except the following shall be supplemented not less than thirty days prior to the beginning of trial unless the court finds that a good cause exists for permitting or requiring later supplementation. 

a. A party is under a duty to reasonably supplement his response if he obtains information upon the basis of which:

(1) he knows that the response was incorrect or incomplete when made;

(2) he knows that the response though correct and complete when made is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading . . . .

b. If the party expects to call an expert witness when the identity or the subject matter of such expert witness= testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, such response must be supplemented to include the name, address and telephone number of the expert witness and the substance of the testimony concerning which the expert witness is expected to testify, as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court.

Tex. R. Civ. P. 166b(6); see State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 617B18 (Tex. 1998).