Justice Hollis Horton
William Schulze and Susan Schulze v. Jonathan Cardenas (No. 09-22-00001-CV; March 28, 2024) arose from an alleged rear-end collision between Plaintiffs’ vehicle and Defendant Cardenas’s truck. The trial court signed a scheduling order requiring the parties to meet certain deadlines before trial, including a requirement that the parties file and serve ten days before trial “all deposition excerpts that may be offered at trial in lieu of live testimony, with specific designated page and line numbers.” The case was subsequently transferred to another trial court, which cancelled the scheduling order and issued a new one with a 14-day pre-trial deadline for serving deposition excerpts by page and line number. In the event, the court set and reset trial several times before a final trial setting in October 2021. Plaintiffs did not file the document listing the excerpts from the surgeon’s deposition that it intended to use until the day of trial. Defendant objected, arguing that Plaintiffs’ failure to identify the doctor as a witness two weeks before trial as a witness who would be testifying by deposition and not in person, as the scheduling order required, deprived Defendant of time to prepare an adequate response. The trial court granted Defendant’s motion to exclude the surgeon’s testimony. When the court asked Plaintiffs’ counsel what evidence she intended to present, counsel indicated that she had no causation witness. The defense offered to waive the jury trial and try the case to the bench, followed by a motion for a directed verdict. Plaintiffs’ counsel did not object, ask to call witnesses, or ask the trial court for an opportunity to make an offer of proof. The trial court saw nothing for it but to grant Defendant’s motion and render a take-nothing judgment. After the trial court denied Plaintiffs’ motion for new trial, Plaintiff appealed.
In an opinion by Justice Horton, the court of appeals affirmed. Plaintiffs argued that the trial court abused its discretion by levying the equivalent of a “death-penalty” sanction when it excluded their causation evidence. They argued further that the sanction fell on them rather than on the attorney who violated the scheduling order and was excessive. The problem with this argument, the court held, was that Plaintiffs failed to offer any evidence to prove that Defendant’s negligence proximately caused the collision. They further had other witnesses, such as a treating chiropractor, who could have opined as to causation and damages but failed to offer them, either. Although the trial court knew that the surgeon had performed surgery on Plaintiff based on the attorney’s representation, the attorney did not provide the court with specifics of the surgeon’s testimony at the pretrial hearing, particularly whether in the surgeon’s opinion the Plaintiff’s injury and subsequent surgery were reasonably related within a reasonable medical probability to the wreck. Finally, Plaintiffs never told the trial court that without the surgeon’s testimony, they had no case, nor did they make an offer of proof when the trial court asked after granting the motion for a directed verdict.
Based on this record, the court concluded that the exclusion of the surgeon’s testimony did not amount to a “death-penalty” sanction because there were other ways Plaintiffs could have proceeded to avoid that result. Simply stated, “because the plaintiffs never obtained a ruling from the trial court on the defendant’s objections to their late-filed Exhibit List and because the plaintiff’s attorney didn’t make an offer of proof, we don’t have sufficient information in the appellate record to determine whether the trial court’s ruling precluded the plaintiffs from proving that [defendant’s] negligence was a proximate cause of [the surgeon’s] surgery on [plaintiff] after the wreck or operated as a death penalty sanction, as they have argued in their appeal.”
This opinion is a painful hard to read by virtue of the sheer number of lawyering errors the court of appeals was at pains to point out. The court clearly felt badly for the plaintiffs, who lost their shot at a recovery simply because their lawyer couldn’t get it together sufficiently to either try the case or preserve any issues for appeal. But the process has to mean what it says, and we think the court was right to view it that way.
