Opinion
No. 05-04-00307-CV
Opinion Filed April 11, 2005.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. Cc-01-12712-b.
Reverse and Remand.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
National Distributors brought suit against Barkat Daredia on his personal guaranty for the unpaid balance of Star Import Warehouse's account. Following a jury trial, the trial court rendered judgment in favor of National Distributors. On appeal, Daredia contends that the trial court erred (1) in overruling his motion for directed verdict when there was insufficient evidence to support the element of delivery, (2) in overruling his motion for directed verdict when the evidence established waiver of the guaranty with respect to the account at issue, and (3) in allowing Fred Halimi to testify. We reverse the judgment of the trial court and remand the cause for new trial.
BACKGROUND
After purchasing Star Imports Warehouse in January of 1999, Daredia individually guaranteed payment of its account with National Distributors by executing a continuing guaranty agreement. Under the terms of the agreement, the guaranty could be revoked only upon written notice from National. The guaranty further contained the following waiver language: "It is specifically understood that all billing, accounts receivables, and credit functions of National Distributors are processed in Los Angeles County, California are (sic) waived." In November 2001, National filed suit against Daredia on his guaranty. National alleged that Star Imports owed $63,275.10 for merchandise that National delivered in 2001.
Daredia testified that he sold Star Imports on August 31, 1999, and that he notified National of the sale by letter about one month later. He further testified that, after the sale of the business, he never ordered goods through Star Imports, received any goods from National, nor received notice of the delinquent account with National. Daredia did not produce a written release of the guaranty.
The trial court allowed Fred Halimi ("Halimi"), president of National, to testify over Daredia's objection that National had failed to identify him as a trial witness. Halimi testified that Daredia set up an account on behalf of Star Imports and executed the personal guaranty of that account shortly after purchasing the business. Halimi admitted that he did not know what several of the guaranty's terms meant. For example, he could only assume that "usual place of business" referred to Daredia's place of business. And, although he stated that the account of Star Imports was processed in Los Angeles County and agreed that the guaranty stated that anything processed there was waived, he was not sure what "waive" meant.
Halimi testified that, when Daredia purchased Star Imports, National released the former owner of Star Imports from his personal guaranty because the account had a zero balance. According to Halimi, if National had received notice that Daredia had sold the Star Imports, it would have similarly revoked Daredia's guaranty. However, Halimi claimed that Daredia never notified National that he had sold Star Imports. Halimi also testified that Star Imports owed $63,275.10 and that National had notified Daredia that the account was past due.
Halimi further testified that he was in charge of National's warehouse operations, but he did not personally observe the loading of goods for shipment to Star Imports. Nor did he have personal knowledge regarding delivery of the goods to Star Imports. However, he claimed that National would have been notified if the goods had not been delivered to Star Imports.
Daredia moved for directed verdict twice prior to submitting the case to the jury. The trial court overruled Daredia's motions both times.
The jury returned a verdict for National and awarded National $63,275.10 in damages as well as pre-judgment and post-judgment interest. After the trial court entered judgment on the jury's verdict, Daredia filed motions for judgment notwithstanding the verdict and for new trial. The trial court denied both.
This appeal followed. Because Daredia's third issue is dispositive, we will address it first.
I. FAILURE TO IDENTIFY HALIMI AS A TRIAL WITNESS
Daredia argues that the trial court erred in allowing Halimi to testify because National had not identified him as a trial witness in its discovery response. We agree.
With regard to witnesses, the discovery process ensures that a witness will not be called when the opposing party has not previously identified him. Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex. 1990). A party who fails to respond to or supplement his response to a discovery request shall not be entitled to offer testimony of a witness having knowledge of a discoverable matter unless the trial court finds good cause sufficient to require admission or determines the other party will not be unfairly surprised or prejudiced. Tex. R. Civ. P. 193.6 (a). When an objection is made to an unidentified witness, the burden to establish good cause or lack of surprise or prejudice is on the party offering the witness. Tex. R. Civ. P. 193.6 (b). The trial court has discretion to determine whether the offering party met this burden. Dolenz v. The State Bar of Texas, 72 S.W.3d 385, 387 (Tex.App.-Dallas 2001, no pet.). Thus, we review a trial court's discovery rulings under an abuse of discretion standard. Avary v. Bank of America, N.A., 72 S.W.3d 779, 787 (Tex.App.-Dallas 2002, pet. denied). To obtain reversal on the admission of an undisclosed witness, there must have been error that probably caused rendition of an improper judgment in the case or prevented the appellant from properly presenting the case to the appellate court. Tex.R.App.P. 44.1(a); Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 924 (Tex.App.-Fort Worth 2001, pet. denied).
When National called Halimi to the witness stand, Daredia objected and moved to exclude him as a trial witness. Daredia argued that he had requested identification of National's expected trial witnesses through an interrogatory and that National had responded by listing only its chief executive officer, not Halimi. Without objection from National, Daredia read the interrogatory and National's response into the record.
National did not dispute that it had failed to identify Halimi as a trial witness in its response to the interrogatory. Instead, National told the trial court that it had listed Halimi in its supplemental response to Daredia's Rule 194 request for disclosure and argued that this provided Daredia with adequate notice that Halimi would testify. Daredia responded that National had listed only persons with knowledge of relevant facts, not potential trial witnesses, in the response.
The trial court essentially found that listing Halimi as a person with knowledge of relevant facts in the response to the Rule 194 request for disclosure relieved National of its duty to supplement its response to the interrogatory request for trial witnesses and established Daredia's lack of surprise. In overruling Daredia's objection to Halimi as a witness, the trial court stated:
The Court in this case finds that there is no surprise, the witness has previously been identified, although not in answer to interrogatories, he has been identified in disclosures, and the Court finds that it's not a surprise.
The trial court then allowed Halimi to testify as National's only trial witness regarding the amount owed on the account, the guaranty's language that Daredia claims waived his liability with respect to the delinquent account, and National's company procedures regarding delivery of goods.
We conclude that the trial court committed error in allowing Halimi to testify. While Rule 193.5 relieves a party of its duty to supplement or amend discovery when the information sought has been made known through other discovery, we cannot conclude, as did the trial court, that National's identification of Halimi in its Rule 194 response adequately identified him as a trial witness. See Tex. R. Civ. P. 193.5(a)(2). The record shows that Daredia's interrogatory asked National to identify all persons who might testify at trial and that the Rule 194 request for disclosure asked for persons with knowledge of relevant facts. See Tex. R. Civ. P. 194 (a party may request disclosure of, among other things, testifying expert witnesses and persons having knowledge of relevant facts; there is no mention of trial witnesses who are not experts). The rules of civil procedure clearly distinguish between persons with knowledge of relevant facts and intended trial witnesses. See Tex. R. Civ. P. 192.3(c) (a person with knowledge of relevant facts has or may have knowledge of a discoverable matter, but he need not have admissible knowledge or personal knowledge of the facts); Tex. R. Civ. P. 192.3(d) (a trial witness is a person who is expected to be called to testify at trial). The trial court had no basis for finding that a trial witness and a person with knowledge of relevant facts were interchangeable for discovery purposes. Accordingly, the trial court abused its discretion in finding that National had met its burden regarding the element of surprise and in allowing Halimi to testify. See Jones v. Andrews, 873 S.W.2d 102, 105 (Tex.App.-Dallas 1994, no pet.) (a trial court abuses its discretion if it acts without reference to any guiding rules or principles). We further conclude that the trial court's error was harmful. Because Halimi was National's sole witness, National's entire case turned on his testimony. See Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989) (error not harmless when the unidentified witness's testimony was not cumulative and may have been crucial to the jury's verdict). Therefore, after reviewing the record, we conclude that the trial court's error in allowing Halimi to testify caused rendition of an improper judgment in this case.
We sustain Daredia's third issue.
II. CONCLUSION
Our disposition of Daredia's third issue obviates any need to discuss the remaining issues. We reverse the judgment of the trial court and remand for new trial on the merits.