Fitzpatrick v. Fitzpatrick

1

JOHN MICHAEL FITZPATRICK, Appellant v. DEBORAH LYNN FITZPATRICK, Appellee

No. 05-22-00001-CV

Court of Appeals of Texas, Fifth District, Dallas

May 8, 2023

On Appeal from the 429th Judicial District Court Collin County Texas Trial Court Cause No. 429-50901-2020

Before Justices Reichek, Nowell, and Garcia

MEMORANDUM OPINION

DENNISE GARCIA, JUSTICE

This is a divorce case involving John Michael Fitzpatrick ("Husband") and Deborah Lynn Fitzpatrick ("Wife"). Husband complains about the final decree of divorce (the "Decree"), arguing the trial court abused its discretion by: (i) excluding Husband's tracing expert, (ii) finding that Husband acted cruelly towards Wife and committed adultery, (iii) mischaracterizing Husband's separate property as community property, and (iv) rendering a materially unfair and unjust property division. Concluding Husband's arguments are without merit, we affirm the trial court's judgment.

I. Background

Husband and Wife were married in 1990. In 2020, Wife filed a petition for divorce. Husband filed a counterpetition and both parties subsequently amended their pleadings.

Following a hearing, the court entered temporary orders. The case was initially set for trial on November 3, 2020, but Husband moved for a continuance. The trial court granted Husband's motion and the case was reset to Feb. 2, 2021.^[1]The court's order expressly ordered that "No pretrial deadlines are extended, including but not limited to discovery deadlines."

On November 20, 2020, Husband supplemented discovery and designated an expert witness to testify about tracing Husband's separate property. Wife moved to strike the supplemental discovery, including the expert designation, as untimely.

On January 7, 2021, prior to the hearing on Wife's motion to strike, Husband's counsel moved to withdraw. The court conducted a hearing and granted the motion.

The court held a hearing on the motion to strike on January 22, 2021. Wife argued that the supplemental discovery and expert designation were untimely. Husband argued that Wife would not be surprised or prejudiced because the parties were aware that Husband had separate property. But when the judge asked Husband's counsel if Husband was unable to prove his separate property without an expert, counsel replied, "Um, no, Your Honor, he can prove it up." Nonetheless, counsel stated that the expert would be "helpful." When the hearing concluded, the court entered an order striking Husband's tracing expert.

The case was tried to the court on February 2, 2021. When the trial concluded, the judge issued a memorandum decision. Husband moved for reconsideration and objected to the proposed final decree. The court denied the motion, overruled the objections, and entered the Decree.

The court subsequently filed findings of fact and conclusions of law. Husband objected and requested additional findings, which were not made. This appeal followed.

II. Analysis

A. Excluding Expert

Husband's first issue argues the trial court abused its discretion by striking the expert and denying his motion for continuance.

We review the trial court's exclusion of evidence under an abuse of discretion standard. JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). A trial court abuses its discretion when it acts without reference to guiding rules and principles so that its ruling is arbitrary or unreasonable. Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas 2005, no pet.).

Rule 193.6(a) provides:

A party who fails to make, amend, or supplement a discovery response, including a required disclosure, in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:

(1) There was good cause for the failure to make, amend, or supplement the discovery response; or

(2) The failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

Tex. R. Civ. P. 193.6(a); see Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992); In re D.W.G.K., 558 S.W.3d 671, 679 (Tex. App.-Texarkana 2018, pet. denied). Exclusion is mandatory and automatic unless the court finds there was good cause for the failure to amend or supplement, or the failure will not unfairly surprise or prejudice the other party. In re D.W.G.K, 558 S.W.3d at 679 (citing Tex.R.Civ.P. 193.6(a); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex. 1986) (per curiam). The party seeking to introduce evidence bears the burden of establishing good cause or the lack of unfair surprise or prejudice. Tex.R.Civ.P. 193.6(b). The trial court has discretion in determining whether the offering party met this burden, and the record must support the trial court's finding. In re D.W.G.K, 558 S.W.3d at 679; In re Matthews, No. 10-21-00296-CV, 2022 WL 3651391, at *3 (Tex. App.- Waco Aug. 24, 2022, no pet.) (mem. op.).

Here, it is undisputed that the expert designation was untimely. The court's order granting Husband's first motion for continuance explicitly stated that discovery deadlines would not be extended. Thus, Husband had the burden to establish either good cause, or the absence of surprise or unfair prejudice. Tex.R.Civ.P. 193.6(a); Perez v. Embree Const. Grp., Inc., 228 S.W.3d 875, 884 (Tex. App.-Austin 2007, pet. denied).

Unfair surprise or prejudice.

At the hearing, Husband argued that there was no unfair surprise or prejudice because the parties were aware that Husband owned separate property. Husband's analysis misplaces focus on the parties' awareness of the issue before the court. Proving an absence of unfair surprise or prejudice requires the court to focus on whether the evidence will cause unfair surprise or prejudice. See Spin Doctor Golf, Inc. v. Paymentech, L.P., No. 05-11-01014-CV, 2013 WL 3355199, at *3 (Tex. App. -Dallas 2013, pet. denied) (mem. op.). In this instance, it is immaterial that the parties were aware of the existence of separate property. The question that Husband must answer is whether the testimony and reports of his expert would cause unfair surprise or prejudice to Wife. He makes no effort to do so.

Husband further argues that the expert was necessary for a just and right division in addition to protecting his separate property. This argument addresses the importance of the evidence to Husband's case but does little to satisfy his burden. The fact that a party needs an expert to establish its cause of action does not establish that other parties will not be unfairly surprised by the late designation of an expert. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.- Dallas 2011, pet. denied).

Finally, Husband argues that wife had "just over 30 days to review any documents" from the expert, which he claims should have been "enough time." Husband offers no authority to support why his estimation of time required to review late filed discovery should supplant the rules of civil procedure or the trial court's scheduling order.

Husband failed to meet his burden to show absence of unfair surprise or unfair prejudice.

Good cause.

Husband also argues that there was good cause because counsel withdrew and new counsel was substituted within thirty days before trial. But Husband offers no explanation as to how the withdrawal and substitution of counsel caused the untimely designation. The untimely designation was made by former counsel before new counsel appeared.

Husband also argues that he established good cause at the hearing because the expert was necessary for Husband to prove his separate property claims and for the court to make a just and right division of the property. The record demonstrates, however, that Husband told the court the expert testimony would be "helpful," but was not necessary for Husband to prove he owned separate property.

As the Texas Supreme Court has observed, "[i]t would hardly be right to reward competent counsel's diligent preparation by excusing his opponent from complying with the requirements of the rules." Alvarado, 830 S.W.2d 915. It was within the trial court's discretion to deny Husband the opportunity to call an expert witness that was not properly designated by the relevant deadlines. See Crawford v. Hope, 898 S.W.2d 937, 944 (Tex. App.-Amarillo 1995, writ denied). Under the circumstances present here, the court did not abuse that discretion.

Motion for Continuance.

We also reject Husband's argument concerning the motion for continuance. Although the motion does not appear in the clerk's record, it appears that prior counsel moved for a second continuance when he moved to withdraw. That motion was set for the January 21 hearing. During that hearing, counsel briefly mentioned that "if petitioner needs additional time to do additional discovery or retain their own expert, then they failed to show how delaying this trial a brief amount of time to allow her to do so would unfairly prejudice her." But otherwise, the Motion for Continuance was not mentioned in the hearing. The continuance was not mentioned when the parties appeared for trial. The record reflects that the court did not rule on the motion.

As a prerequisite to presenting a complaint for appellate review the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion; and (2) the trial court ruled on the request, either expressly or implicitly, or refused to rule and the complaining party objected to that refusal. ...