AFFIMRED and Opinion Filed January 20, 2021 

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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 judgm ent against appellant. In three issues, appe llant F1 Construction (“Constru ction”) argues the trial court abused its discretion by a warding 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 judg ment.

1 Appellee has not filed a brief.–2– I. Background Construction filed an Original Petition against defendants Phil lip Banz and Marcos Gutierrez (together, “Def endants”) on May 30, 2018. The petition alleged that Construction entered into a contract with Defendants for p lumbing work on six projects. According to Construc tion, 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 consequenti al 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 brea ch of contract, fraudulent inducement, negligent misrepresentation, and common law fraud. The Defendants were served and answered. Gutierrez’s answer inc luded a Rule 194 request for disclosure in the body of the pleading. Ba nz’s pleading was entitled “Original Answer, Rule 193.7 Notice, and Request for D isclosure,” and also made the Rule 194 request in the body of the pleading. The case was dismissed for want of prosecution but was subseque ntly reinstated. Thereafter, the case was set for trial but continue d pursuant to a joint motion for continuance. The case was ultimately called to trial on June 6, 2019. The da y before trial, Gutierrez filed an objection to and motion to exclude Construct ion’s evidence of damages because Construction ne ver responded to the Rule 194 re quests for–3– disclosure. After receiving the motion, at approximately 4:00 p .m., Construction provided Defendants with s ome damages evidence. 2
The court considered the motion to exclude before trial began. Defendants argued that Construction failed to disclose the amount and meth od 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 requ ests until the motion was filed and his failure to respond was inadvertent. The trial court granted the motion and excluded the evidence, a nd Construction made a bill of excep tion. The trial court entered a take-nothing judgment against Construction a nd, at Construction’s request, m ade 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 T EX

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. P. 215. To this end, it argues that the exclusion of the evidence constituted a death p enalty sanction because it was case-determinative, and the sanction was unjust because the record does not show the court considered a lesser sanction. It furthe r argues that the court erred by granting Rule 215 relief as to Banz because only Gutie rrez’s motion was in

2 The record is not entirely clear about what information was pr ovided, but it appears there was a damages calculation and a prev iously undisclosed witness. 3 The findings and conclusions generally pertain to the final ju dgment, and do not include particular findings on the motion to exclude.–4– writing, and Banz made his motion orally, thereby depriving Con struction of the requisite Rule 215 notice and a hearing. Notwithstanding Construction’s ch aracterization, this is not a Rule 215 sanctions case. Sanctions for discovery abuse unde r Rule 215 are discretionary. See
T EX

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. 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. proceedin g) (discretionary sanction under Rule 215 must be just). 4 The Rule 193.6 penalty, however, is mandatory. See T EX

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. P. 193.6; Cornejo v. Jones , No. 05-12-01256-CV, 2014 WL 316607, at *3, (Tex. App.—Dallas Jan. 29, 2014, no pet.) (me m. op.) (stating that per Rule 193.6, the trial court possesses no discretion an d must exclude evidence not timely provided, amended, or supplemented in response). 5 Because Rule 193.6’s sanction is automatic and not dis cretionary, 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 T EX

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. P. 215. Among other things, permissible sanctions include disallowing f urther discovery, striking pleadings or parts thereof, prohibiting the disobedient party f rom introducing designated matters into evidence, dismissing the action with or without prejudice, rend ering judgment by default, and requiring the disobedient party or the disobedient party’s attorney to pay re asonable expenses relating to the discovery abuse. T EX

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. P. 215.2(b). A death-penalty sanction is any sanction that adjudic ates 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 gra nt a continuance to allow additional discovery, but neither party requested a continuance. See T EX

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. 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 f or the exclusion of evidence under Rule 193, and this is the rule the court conside red and applied. We therefore consider whether the tr ial court’s application of Rul e 193 was in error. Rule 193.6 requires the exclusion of evidence and witnesses tha t are not timely disclosed in response to discovery requests. T EX

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. P. 193.6(a). The Rule “is mandatory, and the penalty—exclusion of evidence—is automat ic, 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 surpris e or unfair prejudice is on the party seeking to introduce the evidence. T EX

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. P. 193.6(a). The good cause exception “allows a trial judge to excuse a part y’s failure to comply with discovery obligations in difficult or impossible circumsta nces.” PopCap Games, Inc. v. MumboJumbo, LLC , 350 S.W.3d 699, 718 (Tex . App.—Dallas 2011, pet. denied). Inadvertence, lac k 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 t he 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 discretio n. 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 gener al test for abuse of discretion is whether the trial court acted without regard t o 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 fa ils to analyze or apply the l aw 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. A pp.—Austin 2018, no pet). The purposes of Rule 193.6 are threefold: (i) to promote respon sible assessment of settlement, (ii) t o prevent trial by ambush, and (iii) to give the other party the opportunity to prepa re rebuttal to expert testimony . In re D.W.G.K ., 558 S.W.3d 671, 680 (Tex. App.—Texar kana 2018, pet. denied). Accord ingly, in order to establish the absence of unfair surprise or prejudice, the p arty seeking to call an untimely disclosed witness or i ntroduce untimely disclosed evid ence must establish that the other party had enough evidence to reasonably assess s ettlement, to avoid trial by ambush, and to prepare rebuttal to expert testimony. Id. Here, it is undisputed that the information was not timely prov ided. 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 Constr uction argued that exclusion wa s a harsh penalty, it presented no evidence that it would have been difficult or i mpossible for it to have timely disclosed the evidence. Nor does Construction argue on a ppeal that there is evidence of good cause in the record. Likewise, Construction offered no evidence to demonstrate the a bsence of unfair surprise or prejudice. Indeed, there is nothing to sugge st that Defendants had enough evidence to reasonably asse ss 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 wa s inappropriate because Rule 215 sanctions require notice and a h earing is misplaced. Banz did not request discretionary sanctions for discovery abus e under Rule 215. Instead, Banz simply stated orally that he joined Gutierrez’s w ritten request for exclusion under Rule 193. We are aware of no authority, nor doe s Construction provide any, precluding the oral p resentation 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, man datory exclusion penalty—the trial court did not abuse its discretion by excludi ng the untimely disclosed evidence.–8– We resolve Construction’s issues against it and affirm the tria l court’s judgment.

190717F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE–9– 

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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 judg ment 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.