                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-251-CV


JOHN ROBERT WHITE                                                   APPELLANT

                                        V.

TONI MARIE PEREZ                                                      APPELLEE

                                    ------------

           FROM THE 322nd DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Appellant John Robert White sued Appellee Toni Marie Perez for divorce,

alleging that the two had been common law married. After the case was called

for trial, the trial court entered a final order finding that White had failed to

sustain his burden of establishing a common law marriage and ordering White’s

claims dismissed. In two issues, White complains that the trial court erred and




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           See Tex. R. App. P. 47.4.
abused its discretion by excluding evidence based on his failure to answer

interrogatories because Perez waived this sanction and because lesser sanctions

were available. We will affirm.

      After White sued Perez for divorce, Perez served interrogatories on him.

Two of the interrogatories sought a list of “all times, dates and places that you

claim or allege that you and Respondent agreed to be married” and of “all times,

dates and places that you claim or allege that you or Respondent represented

to others that you were married.” When White failed to timely respond to the

interrogatories, Perez’s attorney called White’s attorney to remind him of the

due date and to inquire when answers might be forthcoming. On Friday, April

25, 2008, three days before the case was set for trial on Tuesday, April 28,

2008, and three months after the interrogatory answers were due, White

served on Perez unsworn, unsigned answers to the interrogatories.

      At trial, White attempted to offer information into evidence concerning

the parties’ alleged common law marriage that would have been disclosed had

he answered the interrogatories, and Perez objected to the evidence on this

basis. White did not attempt to show good cause for his failure to respond to

the interrogatories. The trial court sustained Perez’s objection to the common

law marriage evidence; on Perez’s motion, the trial court granted a directed




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verdict for her because no admissible evidence existed that the couple was

common law married.

      In his two issues on appeal, White claims that Perez waived her request

for a discovery sanction because she did not file a motion for sanctions or

obtain a hearing on such a motion before trial. White also claims that the trial

court’s death penalty sanction for the failure to timely serve interrogatory

answers was unjust because a lesser sanction would have been proper. Texas

Rule of Civil Procedure 193.6 provides that a party failing to make, amend, or

supplement a discovery response in a timely manner may not introduce in

evidence the material or information that was not timely disclosed unless the

court finds good cause for the failure to timely make, amend, or supplement the

discovery response or that the failure will not unfairly surprise or prejudice the

other parties.   Tex. R. Civ. P. 193.6.     It is presumed that an amended or

supplemental response made less than thirty days before trial was not made

reasonably promptly. Tex. R. Civ. P. 193.5(b). Because rule 193.6’s exclusion

provision is automatic, no motion for sanctions or motion to compel is required

to trigger its application. See F & H Invs., Inc. v. State, 55 S.W.3d 663, 670

(Tex. App.—Waco 2001, no pet.) (holding rule 193.6’s exclusionary sanction

is automatic and does not require motion to compel); see also Fort Brown Villas

III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (recognizing

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rule 193.6’s exclusionary sanction is automatic unless one of the rule’s

exceptions applies). To escape rule 193.6’s automatic exclusion provision, the

burden is on the party seeking to admit the evidence to establish good cause

or the lack of unfair surprise or unfair prejudice. See Harris County v. Inter Nos,

Ltd., 199 S.W.3d 363, 368 (Tex. App.—Houston [1st Dist.] 2006, no pet.);

see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex. 1989)

(analyzing former rule). Here, White’s evidence that should have been provided

in his interrogatory answers was properly and automatically excluded in light of

his failure to attempt to establish good cause. 2 We overrule White’s first issue.

      Likewise, because rule 193.6’s sanction is automatic in the absence of

a showing of good cause or lack of prejudice and is not discretionary with the

trial court, the trial court’s imposition of the required sanction is not reviewed

under a TransAmerican death penalty            sanction analysis.      See, e.g.,

TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)

(explaining that discretionary sanctions imposed by trial court to punish

discovery abuse must be just; the sanction imposed must be directed against

the abuse and toward remedying the prejudice caused to the innocent party,

and the sanction must be no more severe than to satisfy its legitimate

purposes); see also Didur-Jones v. Family Dollar, No. 02-09-00069-CV, 2009


      2
       White does not dispute that the excluded evidence was information
sought in the interrogatories propounded by Perez.

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WL 3937477, at *3 (Tex. App.—Fort Worth Nov. 19, 2009, pet. filed) (mem.

op.) (holding “the cautionary factors set out in TransAmerican Natural Gas

Corp. apply to discretionary sanctions, not to the automatic sanctions under

rule 193.6”). Instead, under rule 193.6, the trial court possesses no discretion;

it must exclude evidence not timely provided, amended, or supplemented in

response to a discovery request in the absence of evidence showing good cause

for the failure to respond or the lack of prejudice to the party opposing

admission of the evidence. See, e.g., Beam v. A.H. Chaney, Inc., 56 S.W.3d

920, 924 (Tex. App.—Fort Worth 2001, pet. denied) (reversing case because

trial court failed to apply the automatic exclusion of rule 193.6 even when no

attempt was made to show good cause, lack of surprise, or prejudice by non-

answering party); see also Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297–98

(Tex. 1986) (analyzing former rule). Because a TransAmerican analysis does

not apply to evidence excluded pursuant to rule 193.6, we overrule White’s

second issue.

      Having overruled both of White’s issues, we affirm the trial court’s

judgment.

                                                        SUE WALKER
                                                        JUSTICE


PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: January 7, 2010


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