AFFIMRED and Opinion Filed January 20, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00717-CV 

F 1 CONSTRUCTION, INC., Appellant 

V. 

PHILLIP W. BANZ AND MARCOS GUTIERREZ, Appellee 

On Appeal from the County Court at Law No. 4 

Collin County, Texas 

Trial Court Cause No. 004-01308-2018 

MEMORANDUM OPINION 

Before Justices Schenck, Smith, and Garcia 

Opinion by Justice Garcia 

This case involves the automatic exclusion of damages evidence for failure to 

timely respond to discovery and a subsequent take-nothing judgment against 

appellant. In three issues, appellant F1 Construction (“Construction”) argues the trial 

court abused its discretion by awarding death penalty sanctions because there was 

no evidence of bad faith and the court failed to consider less drastic measures.1

 As 

discussed below, we disagree, and affirm the trial court’s judgment. 

 1

 Appellee has not filed a brief. 
 –2– 

I. Background 

Construction filed an Original Petition against defendants Phillip Banz and 

Marcos Gutierrez (together, “Defendants”) on May 30, 2018. The petition alleged 

that Construction entered into a contract with Defendants for plumbing work on six 

projects. According to Construction, the work was not performed or was deficient. 

Construction sought recovery of “actual or economic damages for all incomplete and 

remedial work in excess of $25,000 . . . special or consequential damages for loss of 

use permits, cancellation costs, and loss of goodwill in excess of $25,000,” 

exemplary damages, and attorney’s fees based on claims for breach of contract, 

fraudulent inducement, negligent misrepresentation, and common law fraud. 

The Defendants were served and answered. Gutierrez’s answer included a 

Rule 194 request for disclosure in the body of the pleading. Banz’s pleading was 

entitled “Original Answer, Rule 193.7 Notice, and Request for Disclosure,” and also 

made the Rule 194 request in the body of the pleading. 

The case was dismissed for want of prosecution but was subsequently 

reinstated. Thereafter, the case was set for trial but continued pursuant to a joint 

motion for continuance. 

The case was ultimately called to trial on June 6, 2019. The day before trial, 

Gutierrez filed an objection to and motion to exclude Construction’s evidence of 

damages because Construction never responded to the Rule 194 requests for 
 –3– 

disclosure. After receiving the motion, at approximately 4:00 p.m., Construction 

provided Defendants with some damages evidence.2

The court considered the motion to exclude before trial began. Defendants 

argued that Construction failed to disclose the amount and method of calculating 

damages and that Rule 193.6 required exclusion of the evidence. Counsel for 

Construction argued that he wasn’t aware of the disclosure requests until the motion 

was filed and his failure to respond was inadvertent. 

The trial court granted the motion and excluded the evidence, and 

Construction made a bill of exception. The trial court entered a take-nothing 

judgment against Construction and, at Construction’s request, made findings of fact 

and conclusions of law.3

II. Analysis 

Construction’s three issues seek to characterize the exclusion of the evidence 

as an improper death penalty sanction under TEX. R. CIV. P. 215. To this end, it 

argues that the exclusion of the evidence constituted a death penalty sanction 

because it was case-determinative, and the sanction was unjust because the record 

does not show the court considered a lesser sanction. It further argues that the court 

erred by granting Rule 215 relief as to Banz because only Gutierrez’s motion was in 

 2

 The record is not entirely clear about what information was provided, but it appears there was a 

damages calculation and a previously undisclosed witness. 

3

 The findings and conclusions generally pertain to the final judgment, and do not include particular 

findings on the motion to exclude. 
 –4– 

writing, and Banz made his motion orally, thereby depriving Construction of the 

requisite Rule 215 notice and a hearing. 

Notwithstanding Construction’s characterization, this is not a Rule 215 

sanctions case. Sanctions for discovery abuse under Rule 215 are discretionary. See 

TEX. R. CIV. P. 215; TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 

917 (Tex. 1991) (orig. proceeding); see also In re First Transit, Inc., 499 S.W.3d 

584, 591 (Tex. App.—Houston [14th Dist.] 2016) (orig. proceeding) (discretionary 

sanction under Rule 215 must be just).4

 The Rule 193.6 penalty, however, is 

mandatory. See TEX. R. CIV. P. 193.6; Cornejo v. Jones, No. 05-12-01256-CV, 2014 

WL 316607, at *3, (Tex. App.—Dallas Jan. 29, 2014, no pet.) (mem. op.) (stating 

that per Rule 193.6, the trial court possesses no discretion and must exclude evidence 

not timely provided, amended, or supplemented in response).5

 Because Rule 193.6’s 

sanction is automatic and not discretionary, the trial court’s imposition of the 

required sanction is not reviewed under a TransAmerican death penalty sanction 

analysis. White v. Perez, No. 02-09-251-CV, 2010 WL 87469, at *2 (Tex. App.— 

 4

 A trial court may sanction a party for failing to comply with discovery requests or orders. See TEX.

R. CIV. P. 215. Among other things, permissible sanctions include disallowing further discovery, striking 

pleadings or parts thereof, prohibiting the disobedient party from introducing designated matters into 

evidence, dismissing the action with or without prejudice, rendering judgment by default, and requiring the 

disobedient party or the disobedient party’s attorney to pay reasonable expenses relating to the discovery 

abuse. TEX. R. CIV. P. 215.2(b). A death-penalty sanction is any sanction that adjudicates a claim and 

precludes the presentation of the claim on the merits. Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991). 

5

 The court does have the discretion under Rule 193.6 (c) to grant a continuance to allow additional 

discovery, but neither party requested a continuance. See TEX. R. CIV. P. 193.6(c). 
 –5– 

Fort Worth Jan. 7, 2010, pet. denied) (mem. op.) (citing TransAmerican, 811 S.W.2d 

at 917). 

The court did not impose a Rule 215 discretionary sanction here. There was 

no Rule 215 motion for sanctions, nor was Rule 215 mentioned or argued at the 

hearing or in the court’s findings. Instead, Defendants moved for the exclusion of 

evidence under Rule 193, and this is the rule the court considered and applied. We 

therefore consider whether the trial court’s application of Rule 193 was in error. 

Rule 193.6 requires the exclusion of evidence and witnesses that are not 

timely disclosed in response to discovery requests. TEX.R.CIV. P. 193.6(a).The Rule 

“is mandatory, and the penalty—exclusion of evidence—is automatic, absent a 

showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair prejudice.” 

Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.—Dallas 2006, 

no pet.). 

The burden of establishing good cause or lack of unfair surprise or unfair 

prejudice is on the party seeking to introduce the evidence. TEX. R. CIV. P. 193.6(a).

The good cause exception “allows a trial judge to excuse a party’s failure to comply 

with discovery obligations in difficult or impossible circumstances.” PopCap 

Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011, 

pet. denied). Inadvertence, lack of surprise, or the uniqueness of the offered 

evidence, however, do not constitute good cause. Id. If Construction failed to meet 

this burden, then under rule 193.6, the trial court’s decision to exclude the evidence 
 –6– 

should be affirmed. See Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 

185 S.W.3d 7, 13 (Tex. App.—Austin 2005, no pet.). 

 We review the trial court’s decision for an abuse of discretion. VSDH 

Vaquero Venture, LTD. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 

(Tex. App.—Dallas June 16, 2020, no pet.) (mem. op.). The general test for abuse 

of discretion is whether the trial court acted without regard to any guiding rules or 

principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). This occurs 

when either (1) the trial court fails to analyze or apply the law correctly, or (2) with 

regard to factual issues or matters committed to its discretion, the trial court could 

reasonably only reach one decision and failed to do so. Jaster-Quintanilla & Assocs., 

Inc. v. Prouty, 549 S.W.3d 183, 188 (Tex. App.—Austin 2018, no pet). 

The purposes of Rule 193.6 are threefold: (i) to promote responsible 

assessment of settlement, (ii) to prevent trial by ambush, and (iii) to give the other 

party the opportunity to prepare rebuttal to expert testimony. In re D.W.G.K., 558 

S.W.3d 671, 680 (Tex. App.—Texarkana 2018, pet. denied). Accordingly, in order 

to establish the absence of unfair surprise or prejudice, the party seeking to call an 

untimely disclosed witness or introduce untimely disclosed evidence must establish 

that the other party had enough evidence to reasonably assess settlement, to avoid 

trial by ambush, and to prepare rebuttal to expert testimony. Id.

Here, it is undisputed that the information was not timely provided. The 

requests for disclosure were outstanding for almost a year and no information was 
 –7– 

provided until the eve of trial. Construction acknowledged that its failure to respond 

was inadvertent. Although Construction argued that exclusion was a harsh penalty, 

it presented no evidence that it would have been difficult or impossible for it to have 

timely disclosed the evidence. Nor does Construction argue on appeal that there is 

evidence of good cause in the record. 

Likewise, Construction offered no evidence to demonstrate the absence of 

unfair surprise or prejudice. Indeed, there is nothing to suggest that Defendants had 

enough evidence to reasonably assess settlement, avoid trial by ambush, or prepare 

rebuttal to expert testimony. See In re D.W.G.K., 558 S.W.3d at 680. 

In addition, Construction’s argument that Banz’s oral motion was 

inappropriate because Rule 215 sanctions require notice and a hearing is misplaced. 

Banz did not request discretionary sanctions for discovery abuse under Rule 215. 

Instead, Banz simply stated orally that he joined Gutierrez’s written request for 

exclusion under Rule 193. We are aware of no authority, nor does Construction 

provide any, precluding the oral presentation of or joining in such a motion. 

Because Construction did not meet its burden to show good cause or lack of 

surprise or prejudice—an exception to Rule 193’s automatic, mandatory exclusion 

penalty—the trial court did not abuse its discretion by excluding the untimely 

disclosed evidence. 

 
 –8– 

We resolve Construction’s issues against it and affirm the trial court’s 

judgment. 

190717F.P05 

 

/Dennise Garcia/ 

DENNISE GARCIA 

JUSTICE 
 –9– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

F 1 CONSTRUCTION, INC., 

Appellant 

No. 05-19-00717-CV V. 

PHILLIP W. BANZ AND MARCOS 

GUTIERREZ, Appellee 

 On Appeal from the County Court at 

Law No. 4, Collin County, Texas 

Trial Court Cause No. 004-01308-

2018. 

Opinion delivered by Justice Garcia. 

Justices Schenck and Smith 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee PHILLIP W. BANZ AND MARCOS 

GUTIERREZ recover their costs of this appeal from appellant F 1

CONSTRUCTION, INC.. 

Judgment entered January 20, 2021.