Preview
NO. 17- O@ U-4H2
IN THE MATTER OF THE § IN THE DISTRICT COURT
MARRIAGE OF
§ 442ND JUDICIAL DISTRICT
CAMILA MARTINEZ §
AND
ANGEL MANUEL MARTINEZ § DENTON COUNTY, TEXAS
PETITIONER’S MOTION TO STRIKE OR EXLUDE RESPONDENT’S TRIAL
EXHIBITS AND TRIAL WITNESSES
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Petitioner, CAMILA MARTINEZ, Movant herein, by and through
WILLIE CANTU, attorney of record for Movant, and brings this Motion to Strike or Exclude
Respondent’s Trial Exhibits and Trial Witnesses against ANGEL MANUEL MARTINEZ, Non-
Movant herein. In support thereof, Movant shows the Court the following:
I
SUMMARY OF ARGUMENT
On October 18, 2017, Movant, CAMILA MARTINEZ served Request for Disclosure,
Request for Production, and Written Interrogatories on Non-Movant, ANGEL MANUEL
MARTINEZ, in the time and manner prescribed by the Texas Rules of Civil Procedure. On April
10, 2018, over five (5) months after requesting discovery, Non-Movant responded to disclosure
one hundred and forty-four (144) days late. On April 16, 2018, Non-Movant responded to
written interrogatories and production one hundred and fifty (150) days late. Besides being
severely late, the responses to discovery are insufficient and deficient. Therefore, the court should
strike or exclude the Non-Movant’s trial witnesses and trial exhibits.
IL.
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 of 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 of Protective & Regulatory Servs., 160 8.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(c),(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 [1st 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 8.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 Co., 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. A/varado, 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. /d. Inadvertence by the responding party by itself is not good cause.
Id.
Til.
ANALYSIS
Movant served Non-Movant request for disclosure, production, and interrogatories on
October 18, 2017. Timely responses were due November 17, 2017; however, this deadline was not
met. On April 10, 2018, Non-Movant made a response to the request for disclosure, one hundred
and forty-four (144) days late. On April 16, 2018, Non-Movant tendered responses to the written
interrogatories and production, one hundred and fifty (150) days late.
Through disclosure, Non-Movant was asked to provide the name, address, telephone
number of all persons having knowledge of relevant facts, and a brief statement of each identified
person’s connection to the case. Non-Movant’s response is insufficient and deficient. For the
witnesses Non-Movant listed, there is no telephone number, no address, and no brief statement of
each person’s connection to the case. Defendant wholly failed to provide a sufficient and complete
response to this disclosure request. Identifying a general category of people, without providing
specific contact information, is insufficient to satisfy Tex. R. Civ. P. 194.2(e). See Vingcard A.S.
v. Merrimac Hospitality Sys., 59 S.W.3d 847, 856 (Tex.App.—Fort Worth 2001, pet denied) (op.
on reh’g) (holding that failure to provide all information requested constitutes failure to
respond and triggers automatic exclusion of testimony). Consequently, the Court must exclude
the evidence and testimony of each trial witness in accordance with Tex. R. Civ. P. 193.6. Movant
MOTION TO STRIKE AND EXCLUDE Page 3 of 5
is unable to tell determine what connection, if any, these persons with knowledge have with the
case.
Aside from Non-Movant providing responses to written interrogatories and production one
hundred and fifty days late, Non-Movant failed to properly respond to production. Non-Movant
wholly failed to identify and organize what responses apply to the requested information. The Non-
Movant simply provided documents without any direction as to what the documents are in
response to. Non-Movant is under a duty to provide organized responses that are labeled with the
corresponding categories in the requests. Tex. R. Civ. P. 196.3(c).
Non-Movant had sufficient time to produce the information requested by Movant. Indeed,
Non-Movant was under a duty to make a timely 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 a year. 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 insufficient responses over five (5) months late.
There can be no good cause provided for this failure and abuse of discovery. There is no
information provided as to what the Non-Movant’s listed individuals will testify to or their
background or relation to this lawsuit. Allowing these witnesses to testify at this late stage is a
prime example of surprise and undue prejudice. Allowing the introduction of any trial exhibits also
constitutes surprise and undue prejudice to the Movant. As set out in Tex. R. Civ. P. 193.6, Non-
MOTION TO STRIKE AND EXCLUDE Page 4 of 5
Movant’s failure to make timely and sufficient responses to discovery results in automatic
exclusion of the witnesses, their 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 ANGEL MANUEL MARTINEZ's trial witnesses and all trial exhibits and
enter such orders in regard to ANGEL MANUEL MARTINEZ’: failure as it deems just.
Respectfully submitted,
CANTU & CANTU LAW OFFICES, PLLC
5580 PETERSON LANE
SUITE 135
DALLAS, TX 75240
Tel. (214) 630-5700
Fax. (214) 630-5703
if
By:
WILLI ANTU
Texas Bar No, 24038607
Email: cantulawoffices@gmail.com
Attorney for CAMILA MARTINEZ
ade
CERTIFICATE OF SERVICE
I certify that on 2018 a true and correct copy of PETITIONER’S MOTION
TO STRIKE OR EXCLUDE RESPONDENT’S TRIAL EXHIBITS AND TRIAL WITNESSES
was served on all parties according to the Texas Rules of Civil Procedure.
WILLIE CANTU
MOTION TO STRIKE AND EXCLUDE Page 5 of 5
Preview
NO. 17- O@ U-4H2 IN THE MATTER OF THE § IN THE DISTRICT COURT MARRIAGE OF § 442ND JUDICIAL DISTRICT CAMILA MARTINEZ § AND ANGEL MANUEL MARTINEZ § DENTON COUNTY, TEXAS PETITIONER’S MOTION TO STRIKE OR EXLUDE RESPONDENT’S TRIAL EXHIBITS AND TRIAL WITNESSES TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Petitioner, CAMILA MARTINEZ, Movant herein, by and through WILLIE CANTU, attorney of record for Movant, and brings this Motion to Strike or Exclude Respondent’s Trial Exhibits and Trial Witnesses against ANGEL MANUEL MARTINEZ, Non- Movant herein. In support thereof, Movant shows the Court the following: I SUMMARY OF ARGUMENT On October 18, 2017, Movant, CAMILA MARTINEZ served Request for Disclosure, Request for Production, and Written Interrogatories on Non-Movant, ANGEL MANUEL MARTINEZ, in the time and manner prescribed by the Texas Rules of Civil Procedure. On April 10, 2018, over five (5) months after requesting discovery, Non-Movant responded to disclosure one hundred and forty-four (144) days late. On April 16, 2018, Non-Movant responded to written interrogatories and production one hundred and fifty (150) days late. Besides being severely late, the responses to discovery are insufficient and deficient. Therefore, the court should strike or exclude the Non-Movant’s trial witnesses and trial exhibits. IL. 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 of 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 of Protective & Regulatory Servs., 160 8.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(c),(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 [1st 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 8.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 Co., 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. A/varado, 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. /d. Inadvertence by the responding party by itself is not good cause. Id. Til. ANALYSIS Movant served Non-Movant request for disclosure, production, and interrogatories on October 18, 2017. Timely responses were due November 17, 2017; however, this deadline was not met. On April 10, 2018, Non-Movant made a response to the request for disclosure, one hundred and forty-four (144) days late. On April 16, 2018, Non-Movant tendered responses to the written interrogatories and production, one hundred and fifty (150) days late. Through disclosure, Non-Movant was asked to provide the name, address, telephone number of all persons having knowledge of relevant facts, and a brief statement of each identified person’s connection to the case. Non-Movant’s response is insufficient and deficient. For the witnesses Non-Movant listed, there is no telephone number, no address, and no brief statement of each person’s connection to the case. Defendant wholly failed to provide a sufficient and complete response to this disclosure request. Identifying a general category of people, without providing specific contact information, is insufficient to satisfy Tex. R. Civ. P. 194.2(e). See Vingcard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847, 856 (Tex.App.—Fort Worth 2001, pet denied) (op. on reh’g) (holding that failure to provide all information requested constitutes failure to respond and triggers automatic exclusion of testimony). Consequently, the Court must exclude the evidence and testimony of each trial witness in accordance with Tex. R. Civ. P. 193.6. Movant MOTION TO STRIKE AND EXCLUDE Page 3 of 5 is unable to tell determine what connection, if any, these persons with knowledge have with the case. Aside from Non-Movant providing responses to written interrogatories and production one hundred and fifty days late, Non-Movant failed to properly respond to production. Non-Movant wholly failed to identify and organize what responses apply to the requested information. The Non- Movant simply provided documents without any direction as to what the documents are in response to. Non-Movant is under a duty to provide organized responses that are labeled with the corresponding categories in the requests. Tex. R. Civ. P. 196.3(c). Non-Movant had sufficient time to produce the information requested by Movant. Indeed, Non-Movant was under a duty to make a timely 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 a year. 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 insufficient responses over five (5) months late. There can be no good cause provided for this failure and abuse of discovery. There is no information provided as to what the Non-Movant’s listed individuals will testify to or their background or relation to this lawsuit. Allowing these witnesses to testify at this late stage is a prime example of surprise and undue prejudice. Allowing the introduction of any trial exhibits also constitutes surprise and undue prejudice to the Movant. As set out in Tex. R. Civ. P. 193.6, Non- MOTION TO STRIKE AND EXCLUDE Page 4 of 5 Movant’s failure to make timely and sufficient responses to discovery results in automatic exclusion of the witnesses, their 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 ANGEL MANUEL MARTINEZ's trial witnesses and all trial exhibits and enter such orders in regard to ANGEL MANUEL MARTINEZ’: failure as it deems just. Respectfully submitted, CANTU & CANTU LAW OFFICES, PLLC 5580 PETERSON LANE SUITE 135 DALLAS, TX 75240 Tel. (214) 630-5700 Fax. (214) 630-5703 if By: WILLI ANTU Texas Bar No, 24038607 Email: cantulawoffices@gmail.com Attorney for CAMILA MARTINEZ ade CERTIFICATE OF SERVICE I certify that on 2018 a true and correct copy of PETITIONER’S MOTION TO STRIKE OR EXCLUDE RESPONDENT’S TRIAL EXHIBITS AND TRIAL WITNESSES was served on all parties according to the Texas Rules of Civil Procedure. WILLIE CANTU MOTION TO STRIKE AND EXCLUDE Page 5 of 5