                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-069-CV


KATHLEEN DIDUR-JONES                                            APPELLANT

                                        V.

FAMILY DOLLAR, INC.                                               APPELLEE

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

            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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

                         MEMORANDUM OPINION 1

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

                                 I. Introduction

      In seven points, Appellant Kathleen Didur-Jones asserts that the trial

court erred by granting Appellee Family Dollar, Inc.’s motion to strike her

pleadings on damages and granting a take nothing judgment against her. We

affirm.




      1
          … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      In February 2005, Didur-Jones allegedly fell in a Family Dollar store

because of merchandise that had been left on the floor. Nearly two years later,

she filed a premises liability claim against Family Dollar, claiming that as a result

of the fall, she had been “injured and ha[d] been forced to incur reasonable and

necessary medical expenses and ha[d] undergone pain and suffering . . . .”

      On June 5, 2007, Family Dollar sent Didur-Jones a request for disclosure

asking, among other things, for Didur-Jones to disclose the amount and method

of calculating economic damages. See Tex. R. Civ. P. 194.2(d). Approximately

one month later, Didur-Jones filed a response, in which she did not disclose the

amount or method of calculating damages but instead reserved the right to

supplement her response, stating that “all needed information has not been

supplied to this office at this time and plaintiff has not completed medical

treatment as of this date.”

      The case was initially set for February 19, 2008, but the trial court

granted Didur-Jones’s first motion for continuance and reset the trial for June

23, 2008. The parties filed an agreed scheduling order in which they agreed

that pre-trial discovery would close on May 23, 2008; however, Didur-Jones

did not supplement her response regarding the amount or calculation of

economic damages by the May 23 deadline. Instead, on June 6, 2008, she

                                         2
filed a second motion for continuance. The trial court granted the motion and

reset the trial for December 1, 2008.

      On November 19, 2008, Family Dollar filed a motion to strike Didur-

Jones’s evidence of damages, relying on three grounds: (1) Didur-Jones failed

to adequately respond to Family Dollars’s request for disclosure on the amount

and method of calculating economic damages; (2) Didur-Jones had not filed pre-

trial affidavits as provided for by section 18.001 of the civil practice and

remedies code and therefore could not establish that her medical expenses were

reasonable and necessary; and (3) Didur-Jones’s medical records were

inadmissible because they had not been properly authenticated under Texas

Rule of Evidence 902(10). On November 21, 2008, Didur-Jones submitted a

supplemental response to Family Dollar’s request for disclosure. Family Dollar

filed a motion to strike her supplemental response on the ground that it was

untimely.

      On November 26, 2008, Didur-Jones filed her third motion for

continuance and a reply to Family Dollar’s motions to strike. In her reply, Didur-

Jones argued that the only economic damages involved in the case were

medical bills, and that, although she had not formally supplemented her reply

to Family Dollar’s request for disclosure, she had mailed or faxed to Family

Dollar all medical bills as they were received.

                                        3
      At the November 26, 2008 hearing, Family Dollar presented arguments

that Didur-Jones’s economic damages evidence should be excluded on the

grounds in its motions, as well as under rule of civil procedure 193.6.

Following the hearing, the trial court denied Didur-Jones’s third motion for

continuance and granted both of Family Dollar’s motions to strike. When the

case was called for trial on December 1, 2008, Didur-Jones announced “not

ready,” and the trial court entered a take nothing judgment in favor of Family

Dollar. This appeal followed.

                           III. Exclusion of Evidence

      Didur-Jones complains that the trial court abused its discretion by striking

her pleadings on damages and granting a take nothing judgment. She asserts

that the trial court did this by imposing a discovery sanction that was more

severe than necessary without first imposing a lesser sanction or first

determining the prejudice to Family Dollar, and that the sanction imposed had

no direct relationship with the conduct to be sanctioned. She also argues that

the trial court abused its discretion if the sanction was based on the failure to

file affidavits under section 18.001 of the civil practice and remedies code, and

when “it punished the plaintiff with a death penalty sanction for her attorney’s

misconduct without any consideration as to whether she herself was in any




                                        4
way responsible for the discovery violation and there was no evidence that she

was.” 2

      As an initial matter, we note that although Didur-Jones claims that her

pleadings on damages were stricken and that this constituted a “death penalty

sanction,” this did not occur.    Generally, a death penalty sanction occurs

through striking pleadings and dismissing an action or rendering a default

judgment—in short, the preclusion of a decision on the merits.        TransAm.

Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918–20 (Tex. 1991).              An

examination of the motions to strike, 3 responses, replies, and the record of the

hearings on the third motion for continuance and the bench trial makes clear



      2
       … The trial court’s orders on the motions to strike merely state that the
court, “after considering [the motion] and after considering arguments of
counsel, finds that the Motion is well taken and should be GRANTED.”
      3
       … Family Dollar’s original motion to strike specifically references its
request that Didur-Jones disclose “the amount of and method of calculating
economic damages,” and complains that her only response was that she
reserved the right to supplement. Family Dollar’s motion to strike the first
supplemental response to request for disclosure argues that the supplemental
response should be excluded for failure to be made “reasonably promptly,”
complaining that

      with only 10 days to go before trial, Family Dollar has now received
      an Accent medical expenses printout which appears to represent
      Plaintiff’s medical expenses along with a few inexplicable generic
      printouts. To allow [Didur-]Jones to admit evidence of these
      alleged damages at this late stage would clearly constitute the very
      “trial by ambush” Rule 215 is aimed at preventing.

                                       5
that the trial court struck only the economic damages evidence. 4 The court

neither struck her pleadings nor her non-economic damages.

A. Standard of Review

      We review a trial court’s evidentiary rulings for an abuse of discretion.

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). To

determine whether a trial court abused its discretion, we must decide whether

the trial court acted without reference to any guiding rules or principles; in other

words, we must decide whether the act was arbitrary or unreasonable. Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). We must uphold the trial

court’s evidentiary ruling if there is any legitimate basis in the record for the

ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998).

B. Discovery Rule 193.6

      At the hearing on Didur-Jones’s motion for continuance, one of Family

Dollar’s arguments for excluding Didur-Jones’s economic damages evidence

was that the trial court could exclude the evidence under rule of civil procedure




      4
       … After the trial court made its ruling at the continuance hearing, Didur-
Jones’s attorney made the following request: “Your Honor, respectfully, I have
to say that since about 90 percent of my damages is of this lady’s medical bills,
we cannot try this case. I would respectfully request a judgment be entered
against the—against our client so that we can appeal.”

                                         6
193.6. Didur-Jones appeared to argue in response that rule 193.6’s exceptions

for good cause, lack of unfair prejudice, and lack of surprise applied. Therefore,

we will first consider Didur-Jones’s points under rule 193.6. See, e.g., F & H

Invests., Inc. v. State, 55 S.W.3d 663, 668–69 (Tex. App.—Waco 2001, no

pet.) (analyzing motion for sanctions under rule 193.6 when both parties argued

the motion as if it were an objection to the introduction of evidence under rule

193.6, the movant requested the relief available under rule 193.6, and the

nonmovant attempted to use the defenses available under rule 193.6).

      Under rule 193.6, discovery that is not timely disclosed is inadmissible as

evidence. Tex. R. Civ. P. 193.6(a); Fort Brown Villas III Condo. Ass’n, Inc. v.

Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009).          “[I]t is presumed that an

amended or supplemental response made less than 30 days before trial was not

made reasonably promptly.”       Tex. R. Civ. P. 193.5(b).     The exclusion of

evidence for failure to respond is automatic unless one of rule 193.6’s

exceptions applies. Tex. R. Civ. P. 193.6(a)(1), (2); see, e.g., Patton v. Saint

Joseph’s Hosp., 887 S.W.2d 233, 237 (Tex. App.—Fort Worth 1994, writ

denied) (applying former rule 215(5), the predecessor to rule 193.6).

Furthermore, the cautionary factors set out in TransAmerican Natural Gas Corp.

apply to discretionary sanctions, not to the automatic sanctions under rule

193.6. See Tex. R. Civ. P. 193.6; TransAm. Natural Gas Corp., 811 S.W.2d

                                        7
at 917; Patton, 887 S.W.2d at 238; see also Am. Flood Research, Inc. v.

Jones, 192 S.W.3d 581, 582–83 (Tex. 2006) (applying the abuse of discretion

standard to the imposition of sanctions under rule 215).

      A party who fails 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 that (1) there was good

cause for the failure to timely disclose or (2) the failure will not unfairly surprise

or prejudice the other parties. Tex. Mun. League Intergovernmental Risk Pool

v. Burns, 209 S.W.3d 806, 817 (Tex. App.—Fort Worth 2006, no pet.) (citing

Tex. R. Civ. P. 193.6(a)). “The salutary purpose of [this rule] is to require

complete responses to discovery so as to promote responsible assessment of

settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co., 830

S.W.2d 911, 914 (Tex. 1992) (applying former rule 215(5), the predecessor to

rule 193.6). The burden of establishing good cause or lack of unfair surprise

or prejudice is on the party seeking to introduce the evidence. Tex. R. Civ. P.

193.6(b); IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 202 (Tex.

App.—Fort Worth 2005, no pet.). The trial court has discretion to determine

whether the offering party has met its burden. Burns, 209 S.W.3d at 817

(citing Alvarado, 830 S.W.2d at 914).




                                          8
     Didur-Jones argued at the hearing that because her treatment was

ongoing, it was “impossible” to say what her economic damages were, and that

     whenever we got anything, we didn’t—we did not file a formal
     amendment. But whenever we got anything, we faxed it over to
     opposing counsel.   So they’ve actually been furnished with
     everything we have.

           Now the—the treating doctor . . . who—who we couldn’t get
     his deposition, is about 90 percent of the damages. He’s the one
     that did the two operations and then the big items of damage in
     this case. I planned to prove up his bill when we took his
     deposition. We never took his deposition, although we had agreed
     to set it in September. . . . We held on taking his deposition as
     long as possible so that these surgeries could be completed. . . .

           Now, we could have taken his deposition earlier, but what
     could he have said? . . . I’d have to re-depose him when the second
     corrective surgery was done and then re-depose him again before
     the lumbar surgery was done.

           Now, I thought the lumbar surgery would have done—been
     done since, but I can’t hurry these doctors. . . . We have not filed
     formal—formal supplementation, but if I filed a formal
     supplementation, I would have to say, as I did, that economic
     damages are still undetermined.

Family Dollar responded by stating:

     Plaintiff has indicated it was impossible to timely disclose their
     damages. . . . In their late supplementation on November 21st of
     2008, plaintiff does—did fax over this. This is the first time we’ve
     seen this—this up-to-date accounting of her alleged medical
     damages, which show that they have been ongoing; therefore,
     [they] were clearly available to plaintiff to disclose to defendant
     at—at any time, which they—they never were done. Therefore,
     the—the argument it is impossible to put forth plaintiff’s economic
     damages is not—not correct, Your Honor.

                                      9
            Therefore, as of each and every closing—each—each
      discovery deadline, the only damages that were put before the
      Court, informally provided, I should say, to defendant, was the
      amount of $12,499. 5 These other—the other estimates, like I said,
      don’t even reference plaintiff, and it—and it really [does not] give
      us anyway to—it forces the defendant to speculate as to what
      potential damages plaintiff would be claiming.

      It is undisputed that Didur-Jones failed to formally supplement her

response to the portion of Family Dollar’s request for disclosure seeking the

amount and method of calculating economic damages. See Tex. R. Civ. P.

194.2(d); see also Tex. R. Civ. P. 193.5(b) (“An amended or supplemental

response must be in the same form as the initial response.”). And there is

nothing in the record to show why economic damages incurred up to the time

of trial could not have been provided in response to Family Dollar’s request for

disclosure, despite Didur-Jones’s argument that she was still under treatment.

      Based on the record before us, we cannot say that the trial court abused

its discretion by determining that Didur-Jones failed to meet her burden of

establishing good cause or lack of unfair surprise or prejudice. See Tex. R. Civ.

P. 193.6(b); Burns, 209 S.W.3d at 817; IAC, Ltd., 160 S.W.3d at 202. And

because the exclusion of evidence under rule 193.6 is automatic, we need not




      5
      … Didur-Jones sought “monetary relief aggregating $100,000.00 or
more, excluding costs, pre-judgment interest and attorney fees” in her first
amended original petition.

                                       10
address Didur-Jones’s complaints regarding the exclusion of the same evidence

pursuant to section 18.001 of the civil practice and remedies code or rule of

civil procedure 215’s discretionary “death penalty” sanctions. See Tex. R. App.

P. 47.1.

                               IV. Conclusion

      We affirm the trial court’s judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED: November 19, 2009




                                      11
