Linda Jurek v. Dorothy Herauf and Jennifer Rich

Affirmed in Part, Reversed and Remanded in Part and Memorandum Opinion filed January 27, 2009

Affirmed in Part, Reversed and Remanded in Part and Memorandum Opinion filed January 27, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00727-CV

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LINDA JUREK, Appellant

V.

DOROTHY HERAUF AND JENNIFER RICH, Appellees

On Appeal from the County Civil Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 53,613

M E M O R A N D U M   O P I N I O N

Linda Jurek, appellant, sued Dorothy Herauf and Jennifer Rich, appellees, seeking damages as the result of a traffic collision.  The parties stipulated as to liability and tried the issue of damages to the bench.  The trial court awarded Jurek a total of $800, well below the amount she requested for medical expenses and damage to her vehicle.  On appeal, Jurek contends that the trial court erred in (1) permitting appellees to present the testimony of two expert witnesses who were not timely designated in response to requests for disclosure, (2) excluding Jurek=s personal injury evidence, and (3) entering improper findings of fact.  We sustain Jurek=s first issue in part, affirm the judgment in part, and reverse and remand in part for a new trial.

Background

On August 2, 2004, Jurek was involved in an automobile accident with a vehicle apparently owned by Herauf and driven by Rich.  Jurek subsequently filed suit alleging personal injuries and damage to her vehicle. As stated above, appellees Herauf and Rich stipulated that they were responsible for Jurek=s damages.  The issue of the amount of damages was then tried to the bench.  In her testimony, Jurek provided details about the physical injuries she claims resulted from the accident, which allegedly required several surgeries.  Regarding her vehicle, Jurek testified that prior to the accident it was worth about $4,000, having had a new engine put in it.  After the accident, Jurek said that she Ahad to junk it.@  She could not remember specifically how much she received for the damaged vehicle but thought it was $90 or $900.  She said that the whole side of the car was caved in, and she had trouble getting the door open immediately after the collision.  When Jurek=s counsel attempted to introduce her medical records, defense counsel objected that Jurek=s counsel had failed to file the records with the court clerk as provided by the rules of evidence and that they were not properly authenticated.  In response, Jurek=s counsel stated: AI apologize for not having done that; and I will, therefore, withdraw these.@

Officer Richard Sedgwick of the Texas City Police Department also testified at trial.  When Sedgwick was called to the stand by defense counsel, Jurek=s counsel objected that Sedgwick had not been identified in discovery responses as a person with knowledge of relevant facts.  The trial court overruled the objection.  Sedgwick then testified that he investigated the accident involving Jurek and appellees, and he considered the damages to both of the vehicles involved to be minor.  Specifically, Sedgwick said that the damage to Jurek=s vehicle was Aminimum,@ and that he rated it as a Aone,@ although he did not explain what a Aone@ rating meant.  He further said that the vehicle sustained A[s]mall damage down . . . the driver=s side.@  There was a small dent on the driver=s side door, but Sedgwick declined to describe it as Acaved in@ or Acrushed in.@  He did not recall Jurek=s having trouble exiting the vehicle.  He did recall that Jurek drove the vehicle from the scene.  On cross-examination, Sedgwick acknowledged that he did not check the vehicle other than to examine the exterior damage.  He neither looked under the hood nor examined the frame or the electrical system.  Sedgwick did not offer a value of the vehicle pre- or post-accident and did not estimate a dollar value for the damage.

Defense counsel next called Randall Wright as an expert witness on the pre-accident value of the vehicle.  Jurek=s counsel objected that Wright had not been disclosed as an expert witness in response to discovery requests.  The trial court overruled the objection and permitted Wright to testify as a Arebuttal witness.@  Wright then testified that he was a Awarranty administrative and assistant service manager@ at a Texas City automotive dealership. He professed to have experience in the valuation of cars and briefly described his work-history in the retail automotive industry.  Although Wright acknowledged that he had not examined Jurek=s vehicle, he testified that a vehicle of the same year, make, and model of Jurek=s vehicle, that was in Aexcellent condition,@ would have had a retail value of approximately $900 and a wholesale value of approximately $400.  On cross-examination, Wright agreed that if the vehicle had a new engine placed in it, as Jurek testified hers had, that would have increased its value.

During closing argument, defense counsel stated Awe have testimony here that the car . . . is probably worth $800, not $4,000 as she has testified. . . . [A]t best, it would be $800.@  Counsel=s figure was actually a misstatement of Wright=s testimony, wherein he said that the vehicle was worth approximately $900.  Nonetheless, in its judgment, the trial court awarded Jurek a total of $800 for property damages.  In its findings of fact, the court stated that (1) fault was established by admission, (2) Jurek incurred property damages of $800, and (3) no other damages were proven.  On appeal, Jurek argues that the trial court erred in (1) permitting appellees to present the testimony of two expert witnesses despite the fact that the experts were not timely designated, (2) excluding Jurek=s personal injury evidence, and (3) entering improper findings of fact.

Designation of Witnesses

In her first issue, Jurek contends that the trial court erred in admitting the expert testimony of Officer Sedgwick, who testified regarding the amount of damage to Jurek=s vehicle, and Randall Wright, who testified as to the value of Jurek=s vehicle before the collision.  Regarding Sedgwick, Jurek=s counsel objected in the trial court that he had not been designated as a witness with knowledge of relevant facts, i.e., a fact witness.  Because Jurek=s appellant complaint (failure to designate as an expert witness) does not comport with her objection in the trial court (failure to designate as a fact witness), this part of Jurek=s first issue has not been preserved for appeal.  See Tex. R. App. P. 33.1(a); J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 290 (Tex. App.CSan Antonio 2000, pet. denied).^[1]

In regards to Wright, Jurek has argued both in the trial court and on appeal that because he was not timely designated as an expert, his testimony should have been excluded.  This argument, therefore, has been preserved for review.  Rule 195.2 of the Texas Rules of Civil Procedure provides that unless otherwise ordered by the court, a defendant must generally designate his or her experts within 60 days before the end of the discovery period.  Tex. R. Civ. P. 195.2.  Appellees did not argue in the trial court and do not argue on appeal that they timely and properly designated Wright as an expert.  Instead, appellees contend that it was within the trial court=s discretion to admit Wright as an expert nonetheless.

Rule 193.6 provides that when a party fails to timely identify a witness, that party may not offer the testimony of that witness unless the court finds that (1) there was Agood cause@ for the failure to timely identify, or (2) the failure Awill not unfairly surprise or unfairly prejudice the other [party].@  Id. 193.6(a).  The burden of demonstrating good cause or the lack of unfair surprise and unfair prejudice is on the party seeking to call the unidentified witness.  Id. 193.6(b).  Additionally, a trial court=s finding of good cause or the lack of unfair surprise and unfair prejudice must be supported by the record.  Id.  Appellees did not argue in the trial court and do not contend on appeal that the failure to properly identify Wright pre-trial did not cause Jurek unfair surprise or unfair prejudice; instead, appellees argued only good cause for the failure to disclose.  Specifically, appellees assert that Wright was called only to rebut Jurek=s testimony regarding the value of her vehicle prior to the accident.

Under Rule 192.3(d), a party is not required to disclose in discovery the identity of Arebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.@  Id. 192.3(d).  The Texas Supreme Court has held that the fact that a nondisclosed witness was called only as a rebuttal or impeachment witness may under certain circumstances constitute good cause for the failure to disclose.  See Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 4 (Tex. 1994) (holding under prior rule that party met its burden of showing good cause for failure to identify rebuttal expert due to material and unanticipated change in testimony of opposing expert); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 916-17 & n.6 (Tex. 1992) (holding under prior rule that party failed to demonstrate good cause for failure to disclose rebuttal witness); see also Melendez v. Exxon Corp., 998 S.W.2d 266, 276 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (holding trial court did not err in excluding evidence of rebuttal witness for nondisclosure).  However, the burden remains on the party seeking to call the undisclosed witness, and the record must still demonstrate good cause.  See Bullock, 870 S.W.2d at 4; Alvarado, 830 S.W.2d at 916-17; Melendez, 998 S.W.2d at 276.  As these cases illustrate, the mere fact that a witness is called Ain rebuttal@ does not mean that the witness does not have to be disclosed.  See, e.g., Alvarado, 830 S.W.2d at 916 (AAlvarado=s tactical decision prior to trial to call [witness] on rebuttal was not good cause for failing to comply with discovery.@).  A rebuttal witness still has to be disclosed if the need to call that witness reasonably should have been anticipated.  Moore v. Mem=l Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

Here, appellees did not argue in the trial court, much less demonstrate, that they could not have reasonably anticipated the need to call a valuation expert to rebut Jurek=s testimony regarding the pre-accident value of her vehicle.  The damage to Jurek=s vehicle was certainly a focal point of the lawsuit.  Because there is no showing in the record of good cause for the failure to identify Wright as a testifying expert in pre-trial discovery, we conclude that the trial court abused its discretion in permitting his testimony.

We next turn to the question of whether the court=s error is reversible.  AA person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in an improper judgment.@  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753, (Tex. 1995).  To be successful, the complaining party must show that the judgment turned on the particular evidence excluded or admitted. Id. at 753-54.  In making this determination, we review the entire record from the proceedings below.  Id. at 754.  Because Wright was not identified as a testifying expert, Jurek=s counsel was not able to depose him, examine his expert credentials before trial, prepare an effective cross-examination, or arrange for another expert to dispute Wright=s conclusions. Furthermore, except for Jurek=s own testimony, there was no other evidence of the value of her vehicle prior to the accident; in other words, Wright=s testimony was in no way cumulative of other evidence.  See Alvarado, 830 S.W.2d at 917 (finding error in admitting undisclosed witness=s testimony was reversible because it was important to the presenting party=s case and not cumulative).  It is also clear that Wright=s testimony was highly influential to the court as factfinder.  Jurek testified that her vehicle was worth about $4,000 pre-accident and that she had to Ajunk it@ after the accident.  Wright testified that the vehicle was worth about $900 retail and $400 wholesale pre-accident, although he allowed for the fact that a new engine might have increased the value.  Defense counsel subsequently misstated Wright=s testimony, telling the court the vehicle was worth, at most, $800.  In its judgment, the court awarded Jurek that exact amount.  Accordingly, we find that the judgment turned on the erroneously admitted evidence.  We therefore sustain Jurek=s first issue to the extent it complains of the admission of Wright=s testimony.^[2]

Remaining Issues

In her second issue, Jurek contends that the trial court erred in excluding evidence of her physical injuries.  However, as described above, when Jurek=s counsel attempted to introduce said evidence and defense counsel objected, Jurek=s counsel voluntarily withdrew the offered exhibits.  Having withdrawn the exhibits, Jurek cannot now complain on appeal that they were not admitted.  Cf. Maritime Overseas Corp. v. Ellis, 886 S.W.2d 780, 794 (Tex. App.CHouston [14th Dist.] 1994) (holding that because appellant failed to actually offer testimony into evidence, appellant could not complain on appeal about its exclusion), aff=d, 971 S.W.2d 402 (Tex. 1998).^[3] Accordingly, we overrule Jurek=s second issue.

In her third issue, Jurek contends that the trial court entered improper findings of fact.  Jurek, however, does not provide any citations to the record or to relevant authority in support of this issue.  See Tex. R. App. P. 38.1(h) (A[Appellant=s] brief must contain . . . appropriate citations to authorities and to the record.@); WorldPeace v. Comm=n for Lawyer Discipline, 183 S.W.3d 451, 466 (Tex. App.CHouston [14th Dist.] 2005, pet. denied) (overruling issues for failure to properly brief).  Accordingly, we overrule her third issue.

Disposition

Because we have sustained Jurek=s first issue in part and found the trial court=s error to have been harmful, we reverse the portion of the trial court=s judgment awarding $800 for property damage.  The remainder of the judgment is affirmed.  On remand, Jurek is entitled to a new trial only regarding the amount of property damage.  See Tex. R. App. P. 44.1(b) (requiring reversal and remand of only the portion of a judgment affected by error when separable without unfairness to the parties); Williams v. LifeCare Hospitals of N. Tex., L.P., 207 S.W.3d 828, 832-35 (Tex. App.CFort Worth 2006, no pet.) (discussing separability of damages issues).^[4]

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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^[1]  We take no position on the question of whether Sedgwick was properly designated or needed to be designated before testifying.

^[2]  In their brief, appellees also assert that the evidence was legally insufficient to establish either causation of damage or the extent of the damage to the vehicle.  Appellees, however, did not file a notice of appeal challenging the award of property damages in the judgment.  See Tex. R. App. P. 25.1(c); Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737 (Tex. 2001).  Furthermore, other than making these bald assertions, appellees make no argument and cite no authority in support of the assertions. See Tex. R. App. P. 38.2(a).  Accordingly, we do not address the substance of these assertions.

^[3]  While it is true that subsequent to the withdrawal of the exhibits, the trial court purported to rule on the defense objection, this ruling was essentially rendered moot by the prior withdrawal.

^[4]  Wright=s erroneously admitted testimony pertained solely to the value of Jurek=s vehicle and had no impact on her claims of personal injury.  Thus, the part of the judgment affected by the error, i.e., the award of property damages, is separable from the remainder of the judgment, i.e., the finding of liability and the personal injury claims.