AFFIDAVIT OF UNDISCLOSED EXPERT WITNESS PROPERLY EXCLUDED FROM
RESPONSE TO NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Fort Brown Villas III Condominium Association, Inc. vs. Gillenwater, No.
07-1028 (Tex. Apr. 17, 2009)(premises liability suit, exclusion of evidence not produced in
discovery, witness exclusion, undesignated witness, mandatory exclusion at trial vs. in relation to
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN
CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County;
13th district (13-06-00478-CV, ___ SW3d ___, 11-01-07)(court of appeals opinion) (dissent by
Justice Rose Vela)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and
without hearing oral argument, the Court reverses the court of appeals’ judgment and renders
Per Curiam Opinion [link to pdf version]
(Justice Johnson not sitting)
Link to Electronic Briefs | Oral Argument Not Available
Fort Brown Villas III Condo Ass'n. v. Gillenwater, No. 07-1028 (Tex. 2009)
Justice Johnson did not participate in the decision.
In this premises liability case, we decide whether Texas Rule of Civil Procedure 193.6,
which provides for the exclusion of evidence due to an untimely response to a discovery
request, applies in a summary judgment proceeding. We hold that it does and, therefore,
reverse the court of appeals’ judgment.
In April 2004, Coy Gillenwater and his wife rented a condominium at the Fort Brown
Condoshares in Brownsville. While visiting the condominium swimming pool, Gillenwater
attempted to sit down in a pool-side chair. As he lowered himself into the chair, the tip of
Gillenwater’s right ring finger was severed by what Gillenwater alleged to be a broken
weld on the chair’s frame. Gillenwater filed a premises liability claim against Fort Brown.
The parties entered into, and the trial court approved, an “Agreed Level III Scheduling
Order,” which set August 19, 2005, as the deadline for expert disclosure. See Tex. R. Civ.
P. 190.4(a) (permitting the trial court to establish a “discovery control plan tailored to the
circumstances of the specific suit”). The order contained all the requirements of a level
three discovery plan. See id. Fort Brown subsequently agreed to two extensions of the
expert disclosure deadline, to August 25, 2005, and September 22, 2005, respectively.
Gillenwater failed to disclose an expert by any of these deadlines. On February 10, 2006,
Fort Brown filed a no-evidence motion for summary judgment, alleging that Gillenwater
presented no evidence that (1) the condition of the chair posed an unreasonable risk of
harm; and (2) Fort Brown knew or reasonably should have known of any danger presented
by the chair. Gillenwater’s response to this no-evidence motion included an affidavit of a
previously undisclosed expert, Paul Carper, P.E. Fort Brown objected to the motion for
summary judgment, arguing that (1) the expert was not timely disclosed under the
scheduling order; and (2) regardless of the scheduling order’s application, the expert’s
affidavit was conclusory. In response, Gillenwater argued that Carper’s affidavit was
competent summary judgment evidence, that Texas Rule of Civil Procedure 193.6 did not
apply in a summary judgment setting, and that even if it did, Fort Brown was not unfairly
surprised or prejudiced by the affidavit. The trial court sustained the objections, excluded
the expert’s affidavit, and granted Fort Brown’s no-evidence motion for summary
judgment. The court of appeals reversed, holding that the trial court abused its discretion
in striking the expert’s affidavit because Rule 193.6 does not apply in a summary judgment
proceeding. ___ S.W.3d ___. The court also held that the expert’s affidavit was not
conclusory and that it was sufficient evidence to preclude summary judgment. Id. at ___.
Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely
identified are inadmissible as evidence. Tex. R. Civ. P. 193.6(a). A party who fails to
timely designate an expert has the burden of establishing good cause or a lack of unfair
surprise or prejudice before the trial court may admit the evidence. Tex. R. Civ. P. 193.6
(b). “A trial court’s exclusion of an expert who has not been properly designated can be
overturned only upon a finding of abuse of discretion.” Mentis v. Barnard, 870 S.W.2d 14,
16 (Tex. 1994) (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)).
Before the no-evidence motion for summary judgment was introduced to Texas trial
practice, courts did not apply evidentiary sanctions and exclusions for failure to timely
designate an expert witness in a summary judgment proceeding. See, e.g., State v.
Roberts, 882 S.W.2d 512, 514 (Tex. App.—Austin 1994, no writ) (“Discovery rules and
sanctions for failure to designate expert witnesses do not apply to summary judgment
proceedings.”); see also Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939–40 (Tex. App.—
El Paso 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.—Corpus
Christi 1988, no writ). However, in 1997, the no-evidence summary judgment motion was
introduced to the Texas Rules of Civil Procedure as Rule 166a(i), and in 1999, pretrial
discovery rules were amended to include evidentiary exclusions under Rule 193.6. Id. at
§193.6. Since that time, most courts of appeals have applied Rule 193.6 to summary
judgment proceedings. See Thompson v. King, 2007 WL 1064078, *2 (Tex. App.—Tyler
Apr. 11, 2007, pet denied) (mem. op.); Blake v. Dorado, 211 S.W.3d 429, 432 (Tex. App.
—El Paso 2006, no pet.); Chau v. Riddle, 212 S.W.3d 699, 704–05 (Tex. App.—Houston
[1st Dist.] 2006), rev’d on other grounds, 254 S.W.3d 453, 455 (Tex. 2008); Cunningham
v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d 7, 12–13 (Tex. App.—Austin
2006, no pet.); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland
2005, no pet.); Villegas v. Tex. Dep’t. of Transp., 120 S.W.3d 26, 34–35 (Tex. App.—San
Antonio 2003, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex. App.
—Austin 2002, pet. denied). But see Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex. App.—
Corpus Christi 2003, no pet.); Johnson v. Fuselier, 83 S.W.3d 892, 897–98 (Tex. App.—
Texarkana 2002, no pet.) (both declining to apply Rule 193.6 to a summary judgment
Because we have already held that evidentiary rules apply equally in trial and summary
judgment proceedings, Longoria v. United Blood Services, 938 S.W.2d 29, 30 (Tex.
1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally.
Our conclusion is based on the changes made to the pretrial discovery rules and the
introduction of the no-evidence motion for summary judgment. The former pretrial
discovery rules established a fluid deadline for discovery disclosure, which could be
modified based on a change in the date of trial. Ersek, 69 S.W.3d at 272. Thus, it was
possible that an exclusionary rule based on an untimely disclosure used at the summary
judgment stage could exclude evidence that would later be admissible at trial. Id. at 272–
73. However, the new discovery rules establish a date certain for the completion of
discovery, which depends on the discovery plan level and not on the trial date. See id. at
273; see also Tex. R. Civ. P. 190.2–.4 (providing specific time periods for the end of
discovery, depending on the discovery plan level). Under the new rules, there is no longer
a concern that discovery will be incomplete at the summary judgment stage. See Ersek,
69 S.W.3d at 273–74. In fact, the no-evidence rule, by its very language, is to be used
following discovery. Tex. R. Civ. P. 166a(i) (“After adequate time for discovery, a party
without presenting summary judgment evidence may move for summary judgment on the
ground that there is no evidence . . . .”) (emphasis added). Combined with the no-evidence
motion for summary judgment rule, the “hard deadline” established by the pretrial
discovery rules ensures that the evidence presented at the summary judgment stage and
at the trial stage remains the same. See id.; Tex. R. Civ. P. 190.3. Accordingly, the 193.6
exclusionary rule applies equally to both proceedings.
Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in
the agreed scheduling order and subsequent extension agreements. The trial court struck
the expert’s affidavit and did not consider it in granting the summary judgment. ___ S.W.
3d at ___. Because Rule 193.6 provides for the exclusion of an untimely expert affidavit,
we hold that the trial court did not abuse its discretion in striking it. We also hold that
Gillenwater failed to satisfy his burden of establishing good cause or a lack of unfair
surprise or prejudice against Fort Brown. See Tex. R. Civ. P. 193.6(b). Gillenwater did not
designate its expert until three days before the end of discovery and more than five months
after the expert designation deadline.
Having held that the expert’s affidavit was properly excluded, we must review the
remaining evidence to determine whether the trial court appropriately granted Fort Brown’
s motion for summary judgment.
As an invitee, Gillenwater must prove, under his premises liability claim, that (1) a
condition of the premises created an unreasonable risk of harm to the invitee; (2) the
owner knew or reasonably should have known of the condition; (3) the owner failed to
exercise ordinary care to protect the invitee from danger; and (4) the owner’s failure was a
proximate cause of injury to the invitee. State Dep’t of Highways & Public Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992). Fort Brown argues there is no evidence that
Fort Brown had actual or constructive knowledge of the chair’s condition. We agree. Other
than expert evidence, Gillenwater offers the following evidence in support of the
* Gillenwater’s unchallenged explanation of the how the occurrence happened
(by lowering himself into the chair while grabbing the sides). Gillenwater argues this allows
an inference that the chair was already broken.
* Photographs of the chair taken by an insurance adjuster after the injury.
* A deposition from Frank Collins, the condominium manager, testifying that:
* It was the condominium’s responsibility to maintain the outdoor lawn
equipment in a safe condition;
* Collins first became aware of the injury the day after the incident;
* Collins has an associate’s degree in welding;
* Collins knew the combination of chlorine and salt water in the air had a
corrosive effect on metal chairs by the pool; and
* Collins had an employee inspect, wash, and clean all the outdoor lounge
chairs by the pool (including the chair at issue) six days a week.
* Collins and Gillenwater inspected the chair the day after the injury. The broken
weld was visible to both men and was on the same side of the chair where Gillenwater had
placed his hand. After the incident, Collins inspected the other chairs by the pool and
found “hairline cracks” in those chairs, which he subsequently repaired or replaced.
Gillenwater argues that this evidence proves the broken welds were easily visible to the
naked eye prior to the accident. We disagree. Instead, it only establishes that the chairs
were inspected regularly because of the awareness of possible corrosion, that Gillenwater
was injured, and that Collins first became aware of the injury and the chair’s condition the
day after the injury occurred. This evidence has no bearing on whether broken welds was
visible prior to the injury. Gillenwater also argues it is reasonable to infer the dangerous
condition was present and seen by employees when the chairs were washed because
“common sense dictates that the hairline cracks and broken rungs visible on the chair at
issue and the other chairs surrounding the pool did not occur over night.” But this
conclusion is precluded by our holding in CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex.
2000). In CMH Homes, Daenen was injured when he stepped off a truck onto an unstable
loading platform, while carrying a heavy load. Id. at 98. Evidence showed that CMH had
previously replaced the platform and steps a number of times after discovering that they
had become unstable. Id. at 99. We held that the evidence was legally insufficient to prove
that CMH had actual or constructive notice of the risk of the shaky platform, noting that “an
owner or occupier is not liable for deterioration of its premises unless it knew of or by
reasonable inspection would have discovered the deterioration.” Id. at 101–03. We
acknowledged that “Daenen would be entitled to recover if he presented evidence that
CMH actually knew that the platform and step unit had become unstable or if a reasonable
inspection would have revealed that the unit was no longer safe.” Id. at 102. As to the type
of evidence necessary to demonstrate a reasonable inspection that would have revealed
the danger, we explained:
[T]here was no evidence or even contention that CMH had failed to inspect as frequently
as it reasonably should. Similarly, there is no evidence that the instability in the step and
platform unit had existed for a sufficient time that CMH had constructive notice of the
unreasonable risk of harm.
Id. Here, no evidence was presented that Fort Brown actually knew the chair had become
dangerous or that Fort Brown failed to reasonably inspect the chairs. The record
demonstrates that Fort Brown inspected and washed the chairs six days a week out of
concern for the corrosive effect of the pool chlorine and salt water in the air. Gillenwater
also offered no evidence that the broken welds existed on the chair for any length of time
prior to the accident. The fact that Gillenwater’s fingertip was severed and that the chair
broke is evidence that a dangerous condition existed, but it offers no evidence as to how
long it existed. The only possible evidence that a broken weld existed in the chair for any
length of time is Collins’ testimony that he repaired other chairs with hairline cracks after
the accident. But not only does a hairline crack not present the same degree of danger as
a broken weld, this argument addresses knowledge of other chairs, not the one that
actually broke. Therefore, we reverse the court of appeals’ judgment and render a take-
nothing judgment in favor of Fort Brown.
OPINION DELIVERED: April 17, 2009
 Tex. R. Civ. P. 166a (1949, amended 1997).
 Tex. R. Civ. P. 193.6 (1998).
 Because the expert’s affidavit is inadmissible on this point, we need not consider whether the
affidavit was conclusory.