Annamarie Murphy, Guardian of the Estate of George Thomas Murphy, an Incompetent Person v. Gerine Teresa Uhrich and Dale Ivan Uhrich

CV4-191 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00191-CV Annamarie Murphy, Guardian of the Estate of George Thomas Murphy, an Incompetent Person, Appellant v. Gerine Teresa Uhrich and Dale Ivan Uhrich, Appellees FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 133,843-B, HONORABLE RICK MORRIS, JUDGE PRESIDING PER CURIAM Annamarie Murphy, appellant, sued Gerine Teresa Uhrich and Dale Ivan Uhrich, appellees, the owner-operators of a truck involved in a collision with an automobile in which Murphy's ward, George Thomas Murphy, was a passenger. Before trial, the insurance company that provided coverage for the automobile's driver, Trent Fontenot, settled with appellant for $300,000.00. In answers to questions submitted in the court's charge, the jury found Trent Fontenot negligent and completely responsible for the accident. The jury assessed damages at $263,000.00. The jury attributed no negligence to appellees. From that judgment, Murphy appeals. We will affirm the trial court's judgment. In three points of error, appellant complains that the trial court erred in: (1) allowing two expert witnesses, Ted E. Herod and Diane Southern, to testify although the interrogatories concerning them were not fully answered; (2) allowing Gerald Kaenzig to testify as an expert when he had not been designated as an expert witness in response to interrogatories; and (3) admitting evidence of George Murphy's disciplinary problems in high school before the accident in violation of Rule 404 of the Texas Rules of Civil Evidence. The admission of evidence is largely within the trial court's discretion. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 107 (Tex. 1985); Tracy v. Annie's Attic, Inc., 840 S.W.2d 527, 531 (Tex. App.--Tyler 1992, writ denied). To determine whether the trial court abused its discretion, we determine whether the court's actions were arbitrary, capricious, or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989); Tex. R. App. P. 81(b)(1). When answering interrogatories regarding expert witnesses, a party must provide the substance of the testimony on which the party expects the expert to testify. Tex. R. Civ. P. 166b(6). Sufficient information regarding an expert's opinion must be provided to opposing parties to allow them to prepare for cross-examination of the expert or to prepare a rebuttal of the expert's testimony through the testimony of their own expert. See Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). The court in Exxon reiterated that one of the purposes in promulgating discovery and sanctions rules was to encourage full discovery of the issues and facts before trial so that parties could make realistic assessments of their respective positions. Id. at 305. Testimony of Diane Southern and Ted E. Herod In point one, appellant complains that each witness' present employer was not identified nor the substance of facts and opinions and grounds for each opinion detailed. Appellant contends, therefore, that their testimony should have been excluded. Tex. R. Civ. P. 215(5). The answer concerning Ms. Southern gave her address and phone number and identified her as a professional long-haul truck driver. The answer said that Ms. Southern would give expert testimony about the facts of the accident as well as the cause; she would also testify concerning qualifications, training and licensing of truck drivers. (1) Ms. Southern testified that she operated her own truck; i.e., that she was self-employed. She described her training as a truck driver. Considering all of the circumstances surrounding the accident, she concluded that she would have entered the highway in the same way as Ms. Uhrich did. All of her testimony is within what was described in response to the interrogatory. Further, she was deposed before trial. It was not an abuse of discretion to allow her to testify. The answer concerning Mr. Herod gave an address and telephone number and identified him as the self-employed owner of a trucking business. The answer stated that he had personal experience as a truck driver and had hired, trained and supervised truck drivers for many years. As a witness, Mr. Herod testified about his experience in learning to drive trucks, as a trucker, and as the owner of a trucking business. He testified about the screening and review process that his company used in hiring drivers. He also testified that, in his experience, owner-operators were safer drivers than employee drivers. His answer came in response to a question that carefully limited Mr. Herod to testifying about his own experience, not general industry opinions or practices. In Caterpillar, Inc. v. Shears, 881 S.W.2d 923, 929 (Tex. App.--Corpus Christi 1994, writ granted), the interrogatory answer designating a liability expert stated that the witness would "discuss procedures utilized by Cipriano Shears and his fellow employees on the date of the accident as well as the Caterpillar front-end loaders being used at the time of the accident." The appellants in that case argued that the subject matter of the expert's testimony had not been adequately disclosed by this supplemental answer. The court stated that although the answer was not a particularly detailed response, it was adequate to give notice of the subject of the testimony. Id. at 930. The court noted that the case had been on file for over four years at the time of trial and there had been time to develop defenses to the pleaded causes of action. The court further noted that the witness's deposition had been taken before trial. Id. The court found it was not an abuse of discretion to allow the expert to testify. Id. Herod's interrogatory answer is not a model of completeness. Neither, however, is it as vague as the answers given in Chapman v. Paul R. Wilson, Jr., D.D.S., Inc., 826 S.W.2d 214, 216 (Tex. App.--Austin 1993, writ denied). In that case, the designation of experts gave the substance of the expert testimony as "findings can be found in the records, which has [sic] been previously produced," and "findings have been previously produced." Id. The court found that the answers were grossly inadequate and it was not an abuse of discretion to strike the expert witnesses. Id. Appellees' answer should be considered in the context of the plaintiff's pleading that Ms. Uhrich was "an incompetent and unfit driver" who was not properly trained. In context, an answer that a designated witness was experienced in training truck drivers should have been adequate to inform plaintiff of the substance of the testimony. Further, Mr. Herod was deposed before trial. The trial court did not abuse its discretion in allowing Mr. Herod's testimony. We overrule point of error one. Gerald Kaenzig's Testimony In point two, Mr. Kaenzig was identified as a teacher and appellant's campus placement coordinator who would testify concerning appellant's employment outlook. He was not designated as an expert, and, as a result, much of his testimony was excluded on the basis that it was expert opinion. The admitted evidence consisted of observations that George Murphy had an "attitude problem," did not apply himself, was lazy, had a problem with respecting teachers and got in trouble for fighting with other students. His testimony consisted of first-hand observations that anyone in contact with George Murphy in a similar setting could have made. The court did not abuse its discretion in admitting Kaenzig's testimony. We overrule point of error two. Admission of School Records In point of error three, appellant complains that the trial court admitted George Murphy's high school disciplinary records in violation of the rules prohibiting character evidence. Tex. R. Civ. Evid. 404. Rule 404 prohibits the use of evidence of a person's character or a trait of his character for the purpose of proving that he acted in conformity with that character on a specific occasion. Id. at 404(a). It also prohibits the use of evidence of other "wrongs or acts" as evidence to prove the character of a person and to show that he acted in conformity with that character. Id. at 404(b). It is difficult to see the applicability of Rule 404 to the objectionable material. The evidence concerning Murphy's disciplinary problems in high school was not offered to prove he acted in any particular way on any given occasion. For example, it was not used to show that, as a careless person in general, he carelessly operated the automobile. In other words, the character evidence was not offered as circumstantial proof of conduct on any particular occasion. See 1 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 404.1 at 143-44 (Texas Practice 2d ed. 1993). In this case, character is itself an issue. Id. at 143. The plaintiff's theory for recovery of damages was that the accident caused personality changes and behavioral problems that clouded his future employment prospects. The disputed evidence gives observations about his behavior in high school to show that personality and behavioral problems existed before the accident. The trial court did not abuse its discretion in allowing the school records to be admitted. We overrule point of error three. We affirm the trial court's judgment. Before Justices Powers, Aboussie and B. A. Smith Affirmed Filed: April 19, 1995 Do Not Publish 1. In the pleadings, appellant asserted that Ms. Uhrich was an inexperienced, poorly qualified driver who was not properly trained to operate the truck safely.