Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. 11-02958-A
Before Justices O'Neill, Lang-Miers, and Evans
ELIZABETH LANG-MIERS JUSTICE
Appellant Alfredo Cornejo appeals from a take-nothing judgment rendered in favor of appellee Anthony Jones after a jury trial. On appeal Cornejo argues that Jones's testimony at trial should have been excluded under Texas Rule of Civil Procedure 193.6(a) because he failed to respond to contention interrogatories. We reverse and remand.
Cornejo sued Jones in March 2011 alleging that Jones caused a multi-vehicle accident in which Cornejo was injured. Jones filed an answer in August 2011 in which he generally denied Cornejo's allegations and also alleged that Cornejo's or someone else's negligence proximately caused the accident. After Jones filed his answer Cornejo served Jones with contention interrogatories. It is undisputed that Jones did not answer the interrogatories.
The case was called to trial before a jury in August 2012. Before trial began and outside the presence of the jury Cornejo objected to Jones's testifying at trial because Jones had failed to answer contention interrogatories "asking, among other things, for [Jones's] general description of the collision made the basis of the lawsuit." In response, the trial court asked Cornejo's counsel if he had moved to compel Jones's answers, and Cornejo's counsel answered, "No."The trial court responded, "Okay. All right. I'm going to decline your request to bar [Jones] from testifying."
At trial Cornejo testified first. He told the jury that on the day in question he was traveling north in one of the left lanes of I-35 around 6:30 a.m. It was raining at the time and traffic was heavy. At one point the cars to his right suddenly came towards him, and his van collided with a gray SUV.
During Cornejo's testimony the police report from the accident was admitted into evidence as Plaintiff's Exhibit 1. The report includes a diagram showing the positioning of nine cars after the accident, including Cornejo's van and Jones's gray Ford SUV. The report also states that Jones entered the freeway at an unsafe speed for the wet road conditions, lost control, and crossed into other lanes of traffic.
Jones testified next. Jones disputed the police report and testified that he was not at fault. According to Jones, he entered the far right lane of the freeway driving approximately fifteen miles per hour because of the heavy traffic and rain. He had "plenty of room to get on." Shortly after he entered the freeway he was hit from behind by another vehicle and the impact sent him spinning into other lanes of traffic where he was hit multiple times by other vehicles. Jones testified that he did not do anything to cause the accident and could not have avoided it. During Jones's testimony Cornejo's counsel again objected to Jones's being allowed to testify, and his objection was overruled.
After the jury returned a verdict in favor of Jones, Cornejo filed a motion for judgment n.o.v. in which he cited Texas Rule of Civil Procedure 193.6(a) and argued that the trial court erred when it allowed Jones to testify. The trial court denied Cornejo's motion and rendered a take-nothing judgment in favor of Jones.
On appeal Cornejo argues that the trial court abused its discretion when it overruled Cornejo's objection under rule 193.6(a) and allowed Jones to testify. Rule 193.6(a) states that absent a showing of either good cause or lack of unfair surprise or prejudice to the other party, "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, or offer the testimony of a witness (other than a named party) who was not timely identified." Tex.R.Civ.P. 193.6(a). In other words, under rule 193.6(a), when a party fails to respond to discovery in a timely manner, the undisclosed evidence is automatically inadmissible unless one of two exceptions applies: (1) good cause for failure to respond, or (2) lack of unfair surprise or prejudice to the other side. See, e.g., Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.—Dallas 2006, no pet.) (noting absent a showing of good cause or lack of unfair surprise or prejudice, rule 193.6 "is mandatory, and the penalty—exclusion of evidence—is automatic").
In response to Cornejo's argument, Jones argues that Cornejo failed to preserve his complaint for appellate review because he did not seek and obtain a running objection to Jones's testimony. We disagree. Before trial began and outside the presence of the jury, Cornejo objected to Jones's being allowed to testify and the trial court overruled Cornejo's objection. This was tantamount to a running objection. See Tex. R. Evid. 103(a)(1) ("When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections."); see also Tornado Trucking, Inc. v. Dodd, No. 10-10-00062-CV, 2011 WL 2641272, at *3–4 (Tex. App.—Waco July 6, 2011, pet. denied) (mem. op.) (noting party "ostensibly received a running objection" concerning admission of certain evidence because party "objected to the complained-of evidence outside the presence of the jury and pursued the objection to an adverse ruling"). Jones also argues that Cornejo waived his objection to Jones's testimony because Cornejo's counsel cross-examined Jones about the accident. To the contrary, the Texas ...