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FILED
6/12/2023 9:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
NO. DC-20-03478
JOHN WARD § IN THE DISTRICT COURT
Plaintiff, §
§
V. § 68TH JUDICIAL DISTRICT
§
AJ REAL ESTATE INVESTMENTS, §
LLC, and ARTURO MACIAS §
Defendants. § OF DALLAS COUNTY, TEXAS
DEFENDANT’S MOTION TO STRIKE OR EXLUDE PLAINTIFF’S TRIAL EXHIBITS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendants, AJ REAL ESTATE INVESTMENTS, LLC., and ARTURO
MACIAS, Movant herein, by and through CHRIS CANTU, attorney of record for Movant, and
brings this Motion to Strike or Exclude Respondent’s Trial Exhibits against JOHN WARD
(Plaintiff), Non-Movant herein. In support thereof, Movant shows the Court the following:
I.
SUMMARY OF ARGUMENT
On December 10, 2020, Movants, AJ REAL ESTATE INVESTMENTS, LLC AND
ARTURO MACIAS served Request for Disclosure, Request for Production, and Written
Interrogatories on Non-Movant, JOHN WARD, in the time and manner prescribed by the Texas
Rules of Civil Procedure. As of June 12, 2023, over twenty-nine (29) months after requesting
discovery, Non-Movant has not properly responded to disclosure, has not properly responded to
written interrogatories and production. Because of Non-Movant’s failure to respond to Movant’s
Request for Production and other forms of discovery, Non-movant will be precluded from
producing any exhibits in trial. The court should strike or exclude the Non-Movant’s trial exhibits.
II.
APPLICABLE LAW
The decision whether to admit or exclude evidence is within the discretion of the trial court.
MOTION TO STRIKE AND EXCLUDE Page 1 of 5
City 0f Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its
discretion when it rules on the admissibility of evidence in an arbitrary or unreasonable manner or
without reference to guiding legal principles or rules. Carpenter v. Cimarron Hydrocarbons Corp. ,
98 S.W.3d 682, 687 (Tex. 2002). A trial court’s evidentiary ruling must be upheld if there is any
legitimate basis in the record to support it. Owens-Corning Fiberglass Corp. v. Malone, 972
S.W.2d 35, 43 (Tex. 1998); Taylor v. Texas Dep ’t ofProtective & Regulatory Servs., 160 S.W.3d
641, 650 (Tex.App.—Austin 2005, pet. denied).
During discovery, a party may request disclosure of the name, address, and telephone
number of any person having knowledge of relevant facts, a brief statement of that person’s
connection with the case, and the legal theories and the factual basis of the party’s claims. Tex. R.
Civ. P. 194.2(0),(e). A party may also serve interrogatories seeking information about the pending
lawsuit. Tex. R. Civ. P. 197.1. The responding party must fully answer each interrogatory served
on them. Tex. R. Civ. P. 197.2. Also, a party may request production of tangible documents within
the scope of discovery. Tex. R. Civ. P. 196.1. A party who fails to make, amend, or supplement
a discovery response in a timely manner may not introduce in evidence the material or
information that was not timely disclosed. Tex. R. Civ. P. 193.6.
The purpose of Tex. R. Civ. P. 193.6 is to prevent trial by ambush. Harris Co. v. Inter
Nos, Ltd., 199 S.W.3d 363, 367 (Tex.App.—Houston [lst Dist.] 2006, no pet.) (citing Aetna Cas.
& Sur. Co. v. Specia, 849 S.W.2d 805, 807 (Tex. 1993)). Absent a showing of good cause, lack of
unfair surprise, or lack of unfair prejudice, Tex. R. Civ. P. 193.6 mandates automatic exclusion
of the undisclosed material or information. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914
(Tex. 1992). 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(b); Harris C0., 199 S.W.3d
MOTION TO STRIKE AND EXCLUDE Page 2 of 5
at 367. The good cause exception permits the court to excuse failure to comply with discovery
only in difficult or impossible circumstances. Alvarado, 830 S.W.2d at 914. The court has
discretion to determine Whether the offering party has met its burden of showing good cause to
admit testimony; but the court does not have discretion to admit testimony excluded by the rule
without showing good cause. Id. Inadvertence by the responding party by itself is not good cause.
Id.
Every disclosure and discovery response must be signed by an attorney if the party is
represented by an attorney. Tex. R. Civ. P. 191.3(a). If the response is not signed, it must be
stricken. TRCP 191.3(d). Additionally, a party responding to Interrogatories must be signed under
oath. TRCP 197.2(d).
III.
ANALYSIS
Movant served Non-Movant request for disclosure, production, and interrogatories on
December 10, 2020. Timely responses were due January 11, 2021; however, this deadline was not
met. On or around January 9, 2021, Non-Movant made an incomplete and improper response to
the request for disclosure, production, and interrogatories—all unsigned by Non-Movant and his
representative.
Through disclosure, Non-Movant was asked to provide the factual bases and legal theories
behind Non-Movant’s claims. Additionally, Non-Movant was asked to provide any expert
witnesses. Non-Movant provided an insufficient response to disclosure by not providing a
complete response and by not including any signature from Non-Movant’s counsel. Because there
was no verification by Non-Movant’s counsel and the answer was incomplete, the response for
disclosure is invalid and must be stricken. Non-Movant effectively failed to respond to Movant’s
request for disclosure.
MOTION TO STRIKE AND EXCLUDE Page 3 of 5
Similarly, Non-Movant provided an insufficient response to Movant’s request for
production. Non-Movant’s response did not include his counsel’s signature, and thus was not
verified. Additionally, Non-Movant provided no responsive documents to support his response to
production. Non-Movant’s response to interrogatories is insufficient and deficient. Non-Movant’s
response is not signed under oath and is thus invalid. TRCP 197.2(d). Additionally, Non-Movant
provided incomplete answers.
Non-Movant had sufficient time to produce the information requested by Movant. Indeed,
Non-Movant was under a duty to make a timely complete response and to timely supplement any
other information responsive to the discovery requests. Tex. R. Civ. P. 193.1, 193.5, 194.1,
196.2(a), 197.1. There is no good cause for Non-Movant’s failure to provide complete and accurate
discovery responses to Movant. Non-Movant’s failure to timely and sufficiently respond is an
abuse of discovery, therefore the Court should exclude any trial exhibits and trial witnesses.
IV.
CONCLUSION
This lawsuit has been pending for over two years. Non-Movant had ample time to timely
respond to Movant’s requests for disclosure, production, and written interrogatories but wholly
failed to do so. Instead, Non-Movant provided effectively no responses. There can be no good
cause provided for this failure and abuse of discovery. Allowing the introduction of any trial
exhibits constitutes surprise and undue prejudice to the Movant. As set out in Tex. R. Civ. P. 193.6,
Non-Movant’s failure to make timely and sufficient responses to discovery results in automatic
exclusion of testimony and any documents not timely tendered to Movant.
Recognizing the Court‘s broad authority under the Texas Rules of Civil Procedure to make
such orders as are just, Movant respectfully submits that an appropriate sanction in this case would
be to strike or exclude JOHN WARD's trial exhibits and limit his testimony and enter such orders
MOTION TO STRIKE AND EXCLUDE Page 4 of 5
in regard to JOHN WARD’s failure as it deems just.
Respectfully submitted,
CAN TU & CANTU LAW OFFICES, PLLC
1750 Valley View Ln
SUITE 100
FARMERS BRANCH, TX 75234
Tel. (214) 630-5700
Fax. (214) 630-5703
By: /s/ Chris Cantu
CHRIS CANTU
Texas Bar No. 24038607
Email: info@cantucantulaw.com
Attorney for AJ REAL ESTATE
INVESTMENTS, LLC AND ARTURO
MACIAS
CERTIFICATE OF SERVICE
I certify that on June 12, 2023 a true and correct copy of Defendants’ Motion to Strike or
Exclude Plaintiff’s Trial Exhibits was served on all parties according to the Texas Rules of Civil
Procedure.
/s/ Chris Cantu
CHRIS CAN TU
MOTION TO STRIKE AND EXCLUDE Page 5 of 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Willie Cantu on behalf of Chris Cantu
Bar No. 24096781
info@cantucantulaw.com
Envelope ID: 76541294
Filing Code Description: Motion - In Limine
Filing Description:
Status as of 6/13/2023 9:25 AM CST
Associated Case Party: JOHN WARD
Name BarNumber Email TimestampSubmitted Status
Jennifer Spruiell legaladmin@twlawpllc.com 6/12/2023 9:48:45 PM SENT
Donna Tomlinson 24046868 dtomlinson@twlawpllc.com 6/12/2023 9:48:45 PM SENT
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FILED 6/12/2023 9:48 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY NO. DC-20-03478 JOHN WARD § IN THE DISTRICT COURT Plaintiff, § § V. § 68TH JUDICIAL DISTRICT § AJ REAL ESTATE INVESTMENTS, § LLC, and ARTURO MACIAS § Defendants. § OF DALLAS COUNTY, TEXAS DEFENDANT’S MOTION TO STRIKE OR EXLUDE PLAINTIFF’S TRIAL EXHIBITS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendants, AJ REAL ESTATE INVESTMENTS, LLC., and ARTURO MACIAS, Movant herein, by and through CHRIS CANTU, attorney of record for Movant, and brings this Motion to Strike or Exclude Respondent’s Trial Exhibits against JOHN WARD (Plaintiff), Non-Movant herein. In support thereof, Movant shows the Court the following: I. SUMMARY OF ARGUMENT On December 10, 2020, Movants, AJ REAL ESTATE INVESTMENTS, LLC AND ARTURO MACIAS served Request for Disclosure, Request for Production, and Written Interrogatories on Non-Movant, JOHN WARD, in the time and manner prescribed by the Texas Rules of Civil Procedure. As of June 12, 2023, over twenty-nine (29) months after requesting discovery, Non-Movant has not properly responded to disclosure, has not properly responded to written interrogatories and production. Because of Non-Movant’s failure to respond to Movant’s Request for Production and other forms of discovery, Non-movant will be precluded from producing any exhibits in trial. The court should strike or exclude the Non-Movant’s trial exhibits. II. APPLICABLE LAW The decision whether to admit or exclude evidence is within the discretion of the trial court. MOTION TO STRIKE AND EXCLUDE Page 1 of 5 City 0f Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it rules on the admissibility of evidence in an arbitrary or unreasonable manner or without reference to guiding legal principles or rules. Carpenter v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 687 (Tex. 2002). A trial court’s evidentiary ruling must be upheld if there is any legitimate basis in the record to support it. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Taylor v. Texas Dep ’t ofProtective & Regulatory Servs., 160 S.W.3d 641, 650 (Tex.App.—Austin 2005, pet. denied). During discovery, a party may request disclosure of the name, address, and telephone number of any person having knowledge of relevant facts, a brief statement of that person’s connection with the case, and the legal theories and the factual basis of the party’s claims. Tex. R. Civ. P. 194.2(0),(e). A party may also serve interrogatories seeking information about the pending lawsuit. Tex. R. Civ. P. 197.1. The responding party must fully answer each interrogatory served on them. Tex. R. Civ. P. 197.2. Also, a party may request production of tangible documents within the scope of discovery. Tex. R. Civ. P. 196.1. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed. Tex. R. Civ. P. 193.6. The purpose of Tex. R. Civ. P. 193.6 is to prevent trial by ambush. Harris Co. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex.App.—Houston [lst Dist.] 2006, no pet.) (citing Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 (Tex. 1993)). Absent a showing of good cause, lack of unfair surprise, or lack of unfair prejudice, Tex. R. Civ. P. 193.6 mandates automatic exclusion of the undisclosed material or information. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). 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(b); Harris C0., 199 S.W.3d MOTION TO STRIKE AND EXCLUDE Page 2 of 5 at 367. The good cause exception permits the court to excuse failure to comply with discovery only in difficult or impossible circumstances. Alvarado, 830 S.W.2d at 914. The court has discretion to determine Whether the offering party has met its burden of showing good cause to admit testimony; but the court does not have discretion to admit testimony excluded by the rule without showing good cause. Id. Inadvertence by the responding party by itself is not good cause. Id. Every disclosure and discovery response must be signed by an attorney if the party is represented by an attorney. Tex. R. Civ. P. 191.3(a). If the response is not signed, it must be stricken. TRCP 191.3(d). Additionally, a party responding to Interrogatories must be signed under oath. TRCP 197.2(d). III. ANALYSIS Movant served Non-Movant request for disclosure, production, and interrogatories on December 10, 2020. Timely responses were due January 11, 2021; however, this deadline was not met. On or around January 9, 2021, Non-Movant made an incomplete and improper response to the request for disclosure, production, and interrogatories—all unsigned by Non-Movant and his representative. Through disclosure, Non-Movant was asked to provide the factual bases and legal theories behind Non-Movant’s claims. Additionally, Non-Movant was asked to provide any expert witnesses. Non-Movant provided an insufficient response to disclosure by not providing a complete response and by not including any signature from Non-Movant’s counsel. Because there was no verification by Non-Movant’s counsel and the answer was incomplete, the response for disclosure is invalid and must be stricken. Non-Movant effectively failed to respond to Movant’s request for disclosure. MOTION TO STRIKE AND EXCLUDE Page 3 of 5 Similarly, Non-Movant provided an insufficient response to Movant’s request for production. Non-Movant’s response did not include his counsel’s signature, and thus was not verified. Additionally, Non-Movant provided no responsive documents to support his response to production. Non-Movant’s response to interrogatories is insufficient and deficient. Non-Movant’s response is not signed under oath and is thus invalid. TRCP 197.2(d). Additionally, Non-Movant provided incomplete answers. Non-Movant had sufficient time to produce the information requested by Movant. Indeed, Non-Movant was under a duty to make a timely complete response and to timely supplement any other information responsive to the discovery requests. Tex. R. Civ. P. 193.1, 193.5, 194.1, 196.2(a), 197.1. There is no good cause for Non-Movant’s failure to provide complete and accurate discovery responses to Movant. Non-Movant’s failure to timely and sufficiently respond is an abuse of discovery, therefore the Court should exclude any trial exhibits and trial witnesses. IV. CONCLUSION This lawsuit has been pending for over two years. Non-Movant had ample time to timely respond to Movant’s requests for disclosure, production, and written interrogatories but wholly failed to do so. Instead, Non-Movant provided effectively no responses. There can be no good cause provided for this failure and abuse of discovery. Allowing the introduction of any trial exhibits constitutes surprise and undue prejudice to the Movant. As set out in Tex. R. Civ. P. 193.6, Non-Movant’s failure to make timely and sufficient responses to discovery results in automatic exclusion of testimony and any documents not timely tendered to Movant. Recognizing the Court‘s broad authority under the Texas Rules of Civil Procedure to make such orders as are just, Movant respectfully submits that an appropriate sanction in this case would be to strike or exclude JOHN WARD's trial exhibits and limit his testimony and enter such orders MOTION TO STRIKE AND EXCLUDE Page 4 of 5 in regard to JOHN WARD’s failure as it deems just. Respectfully submitted, CAN TU & CANTU LAW OFFICES, PLLC 1750 Valley View Ln SUITE 100 FARMERS BRANCH, TX 75234 Tel. (214) 630-5700 Fax. (214) 630-5703 By: /s/ Chris Cantu CHRIS CANTU Texas Bar No. 24038607 Email: info@cantucantulaw.com Attorney for AJ REAL ESTATE INVESTMENTS, LLC AND ARTURO MACIAS CERTIFICATE OF SERVICE I certify that on June 12, 2023 a true and correct copy of Defendants’ Motion to Strike or Exclude Plaintiff’s Trial Exhibits was served on all parties according to the Texas Rules of Civil Procedure. /s/ Chris Cantu CHRIS CAN TU MOTION TO STRIKE AND EXCLUDE Page 5 of 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Willie Cantu on behalf of Chris Cantu Bar No. 24096781 info@cantucantulaw.com Envelope ID: 76541294 Filing Code Description: Motion - In Limine Filing Description: Status as of 6/13/2023 9:25 AM CST Associated Case Party: JOHN WARD Name BarNumber Email TimestampSubmitted Status Jennifer Spruiell legaladmin@twlawpllc.com 6/12/2023 9:48:45 PM SENT Donna Tomlinson 24046868 dtomlinson@twlawpllc.com 6/12/2023 9:48:45 PM SENT