Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Houston Court of Appeals (14th) recently held that a party may not avoid exclusion of an undisclosed expert by simply calling the witness to rebut previous testimony.  Appellee failed to timely disclose an expert.  The trial court allowed the expert to testify at trial over appellant's objection.  On appeal, the appellant argued that the witness should have been excluded pursuant to TRCP 193.6 because he was not designated timely.  The appellee argued the witness was only called to rebut appellant's expert testimony.  The court of appeals held that although a party need not designate a rebuttal or impeachment witness whose testimony could not reasonably be anticipated before trial, the expert's testimony went to damages that were "a focal point of the lawsuit."  The Court held the witness' testimony could have been anticipated and, thus, the witness should have been disclosed.

Next the court of appeals considered whether the admission of the expert testimony was harmful error.  Because there was no other evidence on the issue, the Court held that the evidence was not cumulative, and the admission probably resulted in an improper judgment.   Accordingly, the court of appeals court reversed the award of damages and remanded the case for a retrial of damages only.  The court of appeals opinion in Jurek v. Herauf can be found at this link. 

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The Fort Worth Court of Appeals issued a couple of opinions in Young v. Thota addressing an alleged jury charge error.  In this medical negligence case, the alleged charge error relates to whether the trial court should have submitted an issue asking whether the plaintiff was contributorily negligent or whether the plaintiff's acts raised mitigation of damages questions.  The majority concludes that it was error to submit the plaintiff's contributory negligence, while the dissent argues that it was proper to submit the question.  This discussion in itself may merit further review.

Perhaps the more interesting disagreement between the majority and the dissent relates to the analysis of harmful error.  The majority concludes that harm occurred because of the submission of an improper contributory negligence question along with an improper inferential rebuttal instruction on new and independent cause.  The dissent argues that it is clear that if any error occurred, it was not harmful.  The dissent points to the negligence question in which the negligence of Dr. Thota and Ronnie Young were submitted in the same question, but with two separate answers.  Because the jury found no negligence attributable to Dr. Thota and found Young negligent, the dissent concludes there was no commingling so as to trigger a presumed harm analysis.  The Court's opinions may be found at this link. 

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In a case involving application of the mandatory venue provision in section 15.011 of the Texas Civil Practice and Remedies Code, the Dallas Court of Appeals held that a suit to remove a lis pendens constitutes an action to quiet title.  The Court, therefore, held that "[o]nce it is demonstrated that the court's judgment would have some effect on an interest in land, then the venue of the suit is properly fixed under the mandatory venue statute."  The trial court had denied the defendant's motion to transfer venue to Harris County (where the land was located) and rendered judgment on behalf of the plaintiff.  The court noted that "a trial court's erroneous denial of a motion to transfer venue is not harmless and requires reversal of the judgment and remand for new trial."  Accordingly, the court of appeals reversed and remanded the case with instructions to transfer the case to Harris County.  The court's opinion in Airvantage, L.L.C. v. TBAN Props. #1, L.T.D. can be found at this link. 

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