1 In The Court of Appeals Ninth District of Texas at Beaumont

__________________ NO. 09 -22-0 0001 -CV

__________________ WILL IAM SCHULZE AND SUSAN SCHULZE , Appellant s V. JONATHAN CARDENAS , Appellee

__________________________________________________________________ On Appeal from the 457 th District Court Montgomery County, Texas Trial Cause No. 19

- 10

- 14090

- CV

__________________________________________________________________ MEMORANDUM OPINION William and Susan Schulze (the Schulzes) appeal from a take

nothing judgment following the bench trial of a case in which they alleged they were rear

- ended by a truck driven by Jonathan Cardenas. On appeal, the Schulzes argue that the trial court abused its discretion by imposing a death penalty sanction

— excluding the testimony of the surgeon who operated on William Schulze

— for their attorney’s failure to comply with the requirements of the trial court’s Scheduling Order . The2 Scheduling Order required the parties to designate the pages and lines of the deposition testimony the parties intend ed to offer into evidence fourteen days before trial , and the Sc hulzes’ attorney didn’t file line

- and

page designations until the day of the trial. To successfully reve rse a trial court’s judgment based on an error in excluding evidence , the appellant must demonstrate either that (1) the trial court erred by excluding the evidence and the error “ probably caused the rendition of an improper judgment , ” or (2) that the error “probably prevented the appellant from properly presenting the case to the court of appeals

. ”

0 F 1 The record shows that after the trial court announced that the
surgeon ’ s deposition testimony would not be admitted into evidence in the trial, the trial court asked whether the parties had “any evidence that you’re going to want to present?” The Appellants ’ attorney ( who also represent ed the Schulz es in the trial ) told the trial court that the trial court’s ruling put her “in a difficult position because without [the surgeon’s] deposition testimony , with reference to the injuries and the causation, . . . it’s a very difficult case for us to be able to make at this point.” Then, the attorney for Mr. Cardenas told the trial court that his

1 Tex. R. App. P. 44.1 (a ).3 client would try the matter to the bench and waive a jury

. T he Appellants’ attorney agreed to the suggestion to present the case to the bench

. W hen the Schulzes called no witnesses, Cardenas’s attorney moved for a directed verdict based on the Schulzes’ attorney ’s represent ation “that they’re going to be unable to establish causation in this case.” The record shows that before the trial court gra nted Cardenas’s motion for directed verdict, the Schulzes’ attorney failed to make an offer of proof by presenting evidence on the issues of Cardenas’s negligence and evidence on whether Cardenas’s negligence was a proximate cause of injuries the Schulzes alleged they suffered when their car was rear

ended by Cardenas’s truck . “To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court.”

1 F 2 No offer of proof was m ade here, as the record doesn’t show that the S c hulzes’ attorney proffered any deposition s into evidence or summariz ed the m by making a bystander’s bill

. Because we reject t he S c hulzes ’ argument that the trial court’s ruling excluding their surgeon’s testimony amounted to a death penalty

2 Bobbora v. Unitrin Ins. Servs ., 255 S.W.3d 331 (Tex. App.

— Dallas 2008, no pet.) ; see also Tex. R. Evid. 103(c) (allowing a party to present the evidence to the trial court in an offer of proof “as soon as practical”).4 sanction because they failed to create a record sufficient to establish that the ruling precluded their ability to try the case on its merits , we will affirm. Background Th e Schulzes sued Cardenas for negligence , alleging they were injured when he rear

- ended their car with his truck

. 2 F 3 The ir petition includes a jury demand

. After Cardenas was served, an attorney appeared and answered the suit on Cardenas’s behalf

. In January 2020 , the judge of the court in which the case was initially filed

— Judge Jennifer Robin of the 410th Judicial District Court

— signed a Scheduling Order , which required the parties to comply wi th several deadlines before that Scheduling Order set the case for trial , which was on October 12, 2020

. Among other things, the Scheduling Order provided that the parties file and serve “all deposition excerpts that may be offered at trial in lieu of live testimony, with specific designated page and line numbers” by October 1, 2020

.

3 Initially, t he Schulzes sued Jonathan and his mother, Areli Cardenas, but they nonsuited Areli when they filed their First Amended Petition

.5 In August 2020, although no order of transfer to another trial court is included in the Clerk’s Record, the case was apparently transferred to the 410th District Court . In August, the judge of the 4 57th Judicial District, Judge Vince Santini, on his own motion cancelled the Scheduling Order of the 41 0 th District Court and adopted a nother S cheduling O rder , which among other things establish ed a fifteen

- day deadline for filing motions for continuance absent “exigent circumstances.” Under the August 2020 Scheduling O rder , the parties were required to submit a J oint Notice , which required the parties to advise the trial court whether the case was ready fo r trial, how long they estimated the trial would take , and whether there were any pending motions before the court. The Joint Notice also required that the parties exchange exhibit lists, witness lists, and “[a]ll deposition excerpts that may be offered at trial in lieu of live testimony . . . by specific designated pages and line numbers ” no later than fourteen days before the trial

. Under Judge Santini’s Joint Notice, these lists were also required to be filed with the court

. In September 2020, the trial court set the case for trial on January 19, 2021

.6 In January 2021, the parties missed the fourteen

- day

- before

- trial deadline for filing their J oint N otice by one day

. On the day after the Joint Notice was due ( but not filed ) , t he trial court dismissed the case for want of prosecution. One day later, the Schul z es filed an unopposed Verified Motion to Reinstate the case. In the ir M otion to Reinstate , the Schulzes alleged that even though the parties had missed the trial court’s deadline for filing the J oint N otice under the trial court’s S cheduling O rder, the ir failure had been unintentional , had result ed from a mistake , and “it was not made with any conscious indifference” to the trial court’s orders. The Schulze s a lso asked the trial court to continue the trial so that the parties could enter settlement negotiation s since the parties had completed written discovery and had also just the day before completed “the deposition of Plaintiff’s surgeon, Dr. [ David ] Tomaszek .” The trial court granted the request to reinstate the case and signed an order resetting the trial for March 2021

. In the next ten months, the trial court set and reset the case several more time s , with the last trial setting o f October 4, 2021

. Each of the trial court’s notices extending the trial date includes boilerplate language stating : “Unless O therwise O rdered B y T he C ourt, T he O ther D ates A s C alculated F rom T he T rial7 D ate S tated I n T he D ocket C ontrol O rder S igned O n February 26, 2021 R emain T he A pplicable D eadlines F or T his C ase R egardless O f T he R eason F or T he R eset.”

3 F 4 T he Schulzes , however, didn’t strictly comply with the fourteen

day

- pretrial deadline s in the trial court’s February 2021 Notice of Reset : each Joint Notice of Reset required the parties to file “ all pretrial materials described in the Docket Control Order signed on 01/19/202 0
. . . 14 days before [October 4, 2021]. ” For example, the Schulzes’ attorney didn’t meet the fourteen

- day deadline with respect to the Exhibit List and Trial Witness lists

— the Schulzes’ attorney filed these lists on September 28, 2021, six days rather than fourteen days before the October 4, 2021 , trial

. Moreover, even though the Schulzes’ W itness L ist reflects that the plaintiffs re served the right to call Dr. Tomaszek “live or by deposition[,]” the ir attorney failed to file the page and line designations required by the January 2020 Scheduling Order (which is

4 We have altered the language we have quot ed from the Notice of Trial t o make it easier to read by capitalizing only the first letter of each word , but the language quoted in the Notice appears the Notice in all caps .8 referred to by the trial court in its Notices of Reset as the Docket Control Order) to specify what parts of Dr. Tomaszek’s deposition the plaintiffs were planning to offer into evidence in the trial on October 4, 2021. On the same day the Schulzes ’ attorney filed the E xhibit and T rial W itness Lists , she filed an Agreed M otion For Continuance . In the Agreed Motion, the Schulzes’ attorney asked the trial court to continue the case from its setting on October 4 because Dr. Tomaszek wasn’t available “ to testify at trial due to serious health matters , ” which the motion then goes on to specifically describ e. The Schulzes’ attorney verified the Agreed Motion for Continuance , and in her verification the attorney stated that the information in the Agreed Motion was based on information that she had obtained from Dr. Tomaszek’s office about the doctor’s availability and the reasons his office provid ed about why the doctor wasn’t available to testify in Conroe in a trial conducted during the week of October 4th. Neither the Agreed Motion for Continuance nor the information in the Verification that accompan ies the motion state when the plaintiff’s attorney first learned that Dr. Tomaszek would not be available to appear for the trial

.9 About four hours after the Schulzes’ attorney filed the Agreed Motion for Continuance, the trial court signed an Order Denying C ontinuance

. 4 F 5 On October 1, 2021, (t hree days before the trial ) , the Schulzes amended their witness li st to reflect that they intended to present Dr. Tomaszek’s testimony by presenting his deposition testimony alone

.

5 The pleadings don’t show that the parties submitted the Agreed Motion to the trial court by submission or that the parties appeared in court on the motion and argued the motion. Th e Order denying the continuance states “this Court considered” . . . “the Agreed Motion for Continuance and finds it should be denied.” In t he Final Judgment , the trial court added that it denied the Agreed Motion for Continuance on the day it was filed be cause “it was untimely, the Plaintiffs had seven trial setting s to prepare, and the Plaintiffs had the ability to designate excerpts in the nine months that followed Dr. Tomaszek’s deposition. ” The trial court was clearly frustrated with the number of tim es the case had been set and reset. Even so, Rule 330(d) provides that “the court shal l respect w r itten agreements of counsel for postponement and continuance if filed in the case when or before it is called for trial unless to do so will unreasonably dela y or interfere with other business of the court.” Tex. R. Civ. P. 330(d). On appeal, however, the appellants have not raised an issue complaining that the trial court abused its discretion by failing to conduct a hearing on their Agreed Motion for Continuance or that it abused its discretion by failing to grant their Motion for Continuance based on its failure to comply with Rule 330(d). And importantly, it is not this Court’s role to address u nassigned error. See, e.g., Pat Baker Co., Inc. v. Wilson , 971 S.W.2d 447, 450 (Tex. 1998); Allright, Inc. v. Pea r son , 735 S.W.2d 240 (Tex. 1987).10 At just after midnight on October 4, 2021, the Schulzes filed a document listing the page s and line s from Dr. Tomaszek’s deposition that they intended to ask the trial court to admit into evidence during the trial

. The portions of the testimony corresponding to the page and line numbers listed in the document that the plaintiffs ’ attorney filed is not attached to the that document the plaintiffs ’ attorney filed with the District Clerk. On the morning of October 4, which was the first day the

case was on the court’s trial docket for the week, the attorneys for the parties appeared before Judge Santini for a pretrial conference . During the pretrial conference, Judge Santini told the attorneys that they would probably be going to trial in the case be fore another judge either t hat day , tomorrow, or Wednesday. Turning to address other pretrial matters, Cardenas ’s attorney objected to and told the trial court that the plaintiffs had not timely designate d their exhibits, witnesses, and the exce r pts from t he depositions they intended to present into evidence as required by the trial court’s Scheduling Order fourteen days before the trial. As to William Schulze’s surgeon, Dr. Tomas z ek, Cardenas ’s attorney argued that the plaintiffs’ failure to timely identify the doctor as a witness fourteen days before the trial who would be testifying by11 deposition alone and failure to provide the defense with the page s and line s from the doctor’s deposition left the defen dant w ithout enough time
to prepare a response. In response to these arguments , t he Schulzes ’ attorney told the
court that the parties had taken Dr. Tomaszek’s deposition “months previously .” Because the defendant ’s attorney had “all this information , ” the plaintiffs’ attorney suggested , there could be no “surprise” about what Dr. Tomaszek would say

. She also explained why, for reasons related to his health , D octor Tomaszek couldn’t appear for the trial during the week of October 4th

. Responding to the p laintiffs ’ attorney’s argument, Judge Santini explained that because the Schulzes ’ designations were untimely and violated the trial court’s Scheduling Order, the defendant’s attorney didn’t “have a chance to object [,] ” and the court had been deprived of t he opportunity to rule on whatever objections the defense might have raised to the doctor’s testimony before starting the trial. After granting the defendant’s motion to exclude Dr. Tomaszek’s testimony , the trial court asked the plaintiffs’ attorney “do y’all have any evidence that you’re going to want to present? ” The plaintiffs’ attorney responded that she was “in a difficult position because without Dr.12 Tomaszek’s deposition testimony, with reference to the injuries and the causation, . . . it’s a very difficult case for us to be able to make at this point.” After t he defendant’s attorney told the trial court the defendant would waive a jury , he asked the trial court to resolve the matter “right now” in a trial to the bench . At that point, the trial court asked the parties for a motion, and Cardenas’s attorney “moved for a directed verdict based

on [the representation by the plaintiffs ’ attorney] that they’re going to be unable to establish causation in this case.” The plaintiffs’ attorney d idn’t object, didn’t ask to call any witnesses, and didn’t ask the trial court for the opportunity to make an offer of proof. When the trial court ruled, it announced that the court was “going to grant the directed ver d ict on causation in this

- - matter, although the y ’re going to say that no evidence was presented, so this is kin d of a
st r ange thing because there’s

– the whole point here for Justices is that we have juries

– a jury ready or her e ready. The Court’s willing to go forward and pick a jury, but the parties, to save the jury’s time, because this is the big issue going forward, the main issue for the Justices to look at would be the Court’s ruling on Dr. Tomaszek.” Following that explanation, the t rial granted the defendant’s motion for directed verdict.13 On October 5, 2021 , the trial court signed a judgment ordering that

“ Plaintiffs, Williams Schulze and Susan Schulze, take nothing of Plaintiffs’ suit against Defendant, Jonathan Cardenas.” Less tha n thirty days later, t he Schulzes filed a Motion for New Trial. In their motion, they argued that the trial court abused its discretion when it denied their motion for continuance

. The Schulzes ’ motion also argued that the trial
court abused its discretion by excluding the designated excerpts they wanted to present of Dr. Toma s zek’s deposition from the jury because the ruling excluding his testimony operate d as a death penalty sanction , which was more severe than necessary and punish ed the S c hulzes “for a misstep of their attorney , ” for which they weren’t responsible. The trial court denied the M otion for N ew T rial

. Th e Schulzes timely filed their notice of appeal. Analysis In one issue , the Appellants argue the trial court abused its discretion in excluding Dr. Tomaszek’s deposition testimony because the ruling amounts to “a death penalty sanction” with consequences that fall on them rather than their attorney when their attorney is the individual who is resp onsible for the violation the trial court intended to punish.14 Un der the circumstances, the A ppellants conclude that the sanction is grossly excessive and should be revers ed under the standards set out in TransAmerican Nat ural Gas Corp oration v. Powell , 811 S.W.2d 913 (Tex.
1991 ). In the proceedings the trial court conducted on the first day of the trial, the plaintiffs’ attorney told the trial court that even though Dr. Tomaszek’s testimony represented “the main part” of William S c hulze ’s “medic al,” the plaintiffs also had a chiropractor that they could call during the trial. During the pretrial hearing, t he Schulzes’ attorney never argued that a ruling excluding Dr. Tomaszek’s testimony would
amount to a death penalty sanction. Instead, the plai ntiffs’ attorney argued the case would be “a difficult case for us . . . to make” without the benefit of Dr. Tomaszek’s testimony. To be fair, t he trial court was aware that Dr. Tomaszek ’s testimony would generally be relevant to the tying of at least some of the medical expenses that William Schulze incurred to the collision with Cardenas, as the trial court noted in the hearing that without Dr. Tomaszek, “causation and medicals are going to be an issue for your damages and whatnot.” Even so, when the trial court asked the plaintiffs’ attorney if15 she had any evidence she wanted to present, the trial court hadn’t mentioned that it would entertain a motion for directed verdict should the plai ntiffs select a jury and try their case. Had that been done, the plaintiffs could have relied on whatever other evidence the trial court might have admitted into evidence in the trial relevant to establish ing causation, including, but not limited to, testi mony from the witnesses listed in the P laintiffs ’ W itness L ist or the evidence in exhibits listed in the P laintiffs’ E xhibit L ist . In the Exhibit List, for example, the plaintiffs identified medical records from the Schulzes’ healthcare providers , includin g Dr. Tomaszek. In their witness list, they listed a chiropractor , whom their attorney mentioned in the pretrial hearing that they intended to call to testify in the trial . There is also another physician they didn’t mention listed in their Witness List who is listed as a witness they were calling “live via Zoom,” Dr. Neil Badlani.

5 F 6 The trial court’s record doesn’t include his deposition or a bill of proof explaining why he doesn’t

6 A review of the Clerk’s Record reflects that the attorney for Cardenas retained Dr. Badlani, an orthopedic s urgeon, to file a counter

affidavit to dispute the reasonableness and necessity of the chiropractic bills that the Schulzes’ were alleging were caused by the wreck. That said, Cardenas’ s attorney never listed Dr. Badlani on the Defendant’s Witness List, a list that was timely filed before the trial.16 possess the qualifications to address whether Dr. Tomaszek’s surgery is related in reasonable medical probability to the wreck

. At times, a ruling excluding an expert’s testimony impairs the plaintiff’s presentation of their case even though the ruling doesn’t
pre clude a trial of the case on its merits. On appeal, the A pp ellants have not argued that they needed Dr. Tomas z ek’s testimony to establish that Cardenas’s negligence caused the collision between Cardenas and William Schulze . Instead, they argue that they needed Dr. Tomas z ek’s testimony because he “was the only witn ess who could fully testify regarding causation and damages, particularly the details of William’s surgery.” That said, after the defendant’s attorney moved for a directed verdict on causation, the S c hulze s ’ attorney didn’t offer any evidence to prove that Cardenas’s negligence proximately caused the collision, and there is nothing in the Clerk’s Record that shows that Cardenas admitted that he was negligent or that his negligence proximately caused the

wrec k. Additionally, the record the Appellants created when they were in the trial court isn’t sufficient to support their claim that the trial court’s17 ruling constitutes a death penalty sanction

. 6 F 7 No doubt, the trial court was aware that Dr. Tomaszek had pe rformed surgery on William Schulze based on what the Schulzes’ attorney represented and that the Schulzes’ attorney was depending on Dr. Tomaszek to establish what she described as much of William ’ s “medical

. ” That said, the Schulzes’ attorney didn’t provi de Judge Santini with the specifics of Dr. Tomaszek’s testimony in the pretrial hearing, specifically whether he had testified that in his opinion William’s surgery was reasonably related within a reasonable medical probability to the automobile collision between Cardenas and Schulze . And importantly, t he Schulzes’ attorney never told Judge Santini that the Schulzes’ case depended entirely on Dr. Tomaszek ’s testimony to establish that the rear

- end collision with Cardenas in reasonable medical prob ability caused William’s injury and made his surgery necessary. For example, the Plaintiffs’ Exhibit List includes

7 See In re Garza , 544 S.W.3d 836, 843

- 44 (Tex. 2018) (explaining the plaintiff was entitled to mandamus relief in a case in which the trial court excluded the plaintiff’s surgeon’s testimony and medical records when it is the witnesses from whom the records were subpoenaed were the parties responsible for failing to provide the various records based on the relator’s argument that “she will almost certainly suffer a direct verdict as to her claim for past hospita l expense and the majority of her damages”)

.18 medical records from Dr. Tomaszek’s office , but without a bill of proof there is no way to know whether those records might include medical

r ecords tying William’s surgery to the wreck.

7 F 8 The trial court also never ruled on the other objections the defendant’s attorney raised to the plaintiffs’ failure to comply with the requirements of the Joint Notice, includ ing the defendant’s objection to a dmitting the documents listed in the Plaintiffs’ Exhibit List , records that were also filed less than fourteen days before the trial

. A fter the trial court ruled on Cardenas’s motion for directed verdict , Judge Santini asked the Schulzes’ attorney whether she had any evidence that she wanted to present . When she call ed no witnesses and didn’t ask the trial court for the opportunity to make an offer of proof , the defendant’s attorney moved for a directed verdict

. During the proceedings on Oc tober 4th, the plaintiffs’ attorney never argued that the

8 Cardenas’s attorney objected to all the S c hulzes’ late designations, so the objections would have included these records. But the trial court never ruled on these objections. The record shows that in January 2 020, the Schulzes’ attorney served affidavits from various medical providers on the defendant’s attorney. From the notice the p laintiffs’ served, the affidavits appear to have been tied to billing or medical records from the plaintiffs’ doctors or other he alth care providers, and in February 2020, the defendant’s attorney filed counter

- affidavits addressing the medical expenses incurred by William Schulze.19 ruling excluding Dr. Tomaszek ’s testimony operated as a death penalty sanction. Instead, the p laintiffs’ attorney told the trial court that without Dr. Tomaszek’ s testimony “it’s a very difficult ca se for us to be able to make[.]” Based on the record presented to the trial court, we conclude the Appellants have not established that the trial court’s ruling amount s to a death penalty sanction. As mentioned, the plaintiffs’ attorney told the trial cou rt that without Dr. Tomaszek the case would be “difficult

. ” Yet the attorney did not say that without the doctor’s testimony the plaintiffs would have no evidence to tie William’s surgery and medical expenses to the rear

- end collision with Cardenas , which occurred in December 2017. For example, the record in the trial court and the appellate record doesn’t include the medical records that the plaintiffs listed in their Exhibit List

— the medical and billing records from One Step Diagnostic, Parkway Su rgery Center, VIP Surgical Center, and Tomaszek Neurosurgical Associates, among others. The plaintiffs’ attorney didn’t obtain a ruling from the trial court that the court wouldn’t admit these records in the trial . And on a record that doesn’t demonstrate what information is in the plaintiffs’ medical and billing records and without knowing whether20 these records would have been admitted in a trial, we can’t say that the plaintiffs couldn’t have tied William ’ s surgery to the rear - end collision

. Additionally , during the hearing on October 4th, t he plaintiffs’ attorney failed to have the court reporter mark and offer the excerpted portions of Dr. Tomaszek’s deposition into the record, which would have allowed the trial court to have reviewed the doctor’s testi mony before deciding whether to exclude it

. To determine whether a sanction operates as a death penalty sanction (had that argument been made) , t he trial would have needed to consider the information in the medical and billing records listed in the Plainti ffs’ Exhibit List, even though th is list was not filed fourteen days before the trial because the trial court could have allowed those records into evidence, had not ruled that it would exclude them, even though the defendant had lodged an objection to the m because the plaintiffs were tardy in complying with the listing them under the Scheduling Order. Yet 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 plaintiffs’ 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 from21 proving that Cardenas’s negligence was a proximate cause of Dr. Tomaszek’s surgery on William after the wreck or operated as a death penalty sanction, as they have argued in their appeal

. To preserve error , the Texas Rules of Evidence g enerally require that a party make the trial court aware o f what the substance of the witness’s testimony will be and how excluding the testimony will affect the trial

. 8 F 9 That wasn’t done in the context of the motion for directed verdict ruling at issue in this appeal. Generally, a reviewing court must decide whether a ruling to exclud ing evidence operated as a death penalty sanction based on the information in the plainti ffs’ offer of proof unless the information necessary to make that decision is apparent based on the context of the evidence the trial court was asked to exclude.

9 F 10 Without the benefit of an

9 Tex. R. Evid. 103 (a) (2) (if a ruling excludes evidence, a party must inform “the court of its substance by an offer of proof, unless the substance was apparent from the record”) ; s ee In re Garza , 544 S.W.3d at 843. 10 See Farrell v. Regent Care Ctr. of the Woodlands , No. 09

- 15

- 00230

- CV, 2016 Tex. App. LEXIS 13794 , at *35

- 36 (Tex. App.

— Beaumont Dec. 29, 2016, no pet.) (holding that the appellant failed to demonstrate that the error was preserved when the record shows the plaintiff’s attorney didn’t make “an offer of proof to show what testimony he would have elicited from Dr. Garcia if she had been pe rmitted to testify”); Bob b ora ,22 offer of proof

— an offer that included at least Dr. Toma s zek’s dep osition

— the appellants cannot demonstrate that if the trial court erred in excluding Dr. Tomaszek’s testimony that its error “ probably caused the rendition of an improper judgment .”

10F 11 On November 3, 2021, the Schulzes’ attorney filed a Motion for New Trial. But neither the transcript , nor the excerpts from Dr . Tomaszek’s deposition are attached to the M otion.

11F 12 The medical records discussed above are also not attached to the Motion for New Trial. To prevail on their Motion for New Trial, t he burden remained on the Schulzes to establish that the trial court erred and that Dr. Tomaszek’s testimony , if admitted, wouldn’t have been cumulative of other evidence available to the plaintiffs in the trial

. 12F 13

255 S.W.3d at 335 (noting that the “[f]ailure to demonstrate the substance of the excluded evidence results in waiver”). 11 Tex. R. App. P. 44.1(a)(1); s ee also Waffle House, Inc. v. Williams , 313 S.W.3d 796 , 812 (Tex. 2010)

. 12 The Motion for New Trial does not mention the fact that the plaintiffs attached a copy of Dr. Tomaszek’s deposition transcript to their Motion to Exclude Texas Medical Board Orders as Exhibit C, which they filed on September 30, 2021. The Motion for New Trial also does reference Dr. Tomaszek’s deposition transcript , which is at page 329

- 400 of the Clerk’s Record. 13 Tex. R. App. P. 44.1(a)

.23 Without the benefit of an offer of proof, even were we to determine that the trial court erred in excluding the deposition excerpts, we could
not say that a ruling exclu ding Dr. Tomaszek’s deposition operated as a death penalty sanction without a more fully developed record than the one before us here.

13F 14 We hold the trial court did not abuse its discretion by excluding enforcing its Scheduling Order when it gave the S c hulzes the opportunity to fully develop a record sufficient to show that without the doctor’s testimony the plain tiffs would have no other evidence to tie William’s surgery to the rear

- end collision with Cardenas

. 1 4F 15 Because the S c hulzes have not shown that the sanction was a death penalty sanction, the trial court’s judgment is affirmed. AFFI RM ED

.
HOLLIS HORTON Justice Submitted on October 12 , 2023 Opinion Delivered March 28, 2024 Before Golemon, C.J., Horton and Wright, JJ.

14 See Tex. R. Evid. 103(a) ; Tex. R. App. P. 33.1(a) , Farrell Care Ctr. , 2016 Tex. App. LEXIS 13794 , at *36

. 15 Id

.