Dolores Jennings v. Mark C. Hatfield

Affirmed and Memorandum Opinion filed October 20, 2005 Affirmed and Memorandum Opinion filed October 20, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00907-CV ____________ DOLORES JENNINGS, Appellant V. MARK C. HATFIELD, Appellee On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 03-26012 M E M O R A N D U M   O P I N I O N Appellant Dolores Jennings sued appellee Mark C. Hatfield after the parties were involved in a minor traffic accident. Appellant raises three issues on appeal: (1) appellee=s open-ended pre-trial settlement offer is enforceable despite the jury=s having reached a verdict; (2) the trial court erred in excluding the testimony of appellant=s accident reconstruction expert, which resulted in an erroneous verdict; and (3) the trial court erred by excluding evidence of certain medical expenses. We affirm. Background The parties were involved in a minor traffic accident on May 24, 2001. Although the facts are disputed, the collision apparently occurred while the parties were driving through a construction zone in adjacent lanes, and one vehicle crossed into the other vehicle=s lane. Appellant later complained of neck, back, and shoulder pain, and had surgery approximately two years after the accident. Appellant sued to recover the costs of her medical treatment, which she claims to be $83,976.00. During discovery, appellee served requests for disclosure and requests for production of documents on appellant, including requests regarding appellant=s expert witnesses and her medical bills. Specifically, appellee=s Request for Disclosure (f)(4)(A) requests A[a]ll documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert=s testimony.@ However, when appellant first responded on September 15, 2003, she listed only the experts= contact information and did not produce any documents. Additionally, appellee=s Request for Disclosure (d) asked for the amount of economic damages and the method of calculation, to which appellant responded: AAmount of medical bills past and future. Lost time from work, past and future at the amount [appellant] was earning. The amounts will be supplemented.@ Appellant also responded AWill supplement@ to appellee=s Request for Disclosure (j), which addressed appellant=s relevant medical bills and records. On September 15, 2003, appellant also responded to appellee=s requests for production of documents. Appellee=s Request for Production No. 8 sought documents about consulting experts, and Request for Production No. 9 asked for A[a]ll documents and things including all tangible reports, physical models, compilations of data and other material prepared by an expert of [sic] for an expert in anticipation of the expert=s trial and deposition testimony; and any such materials prepared by an expert used for consultation whose work product or opinions have been reviewed, either in whole or in part, by any expert who is to be called as a witness.@ Objecting to both of these requests as A[d]uplicitous of Request for Disclosure,@ appellant did not produce the requested materials. On February 16, 2004, appellant supplemented her responses to appellee=s requests for disclosure. While appellant gave a figure for lost income, she again responded Awill supplement@ to appellee=s request for medical bills and records and still did not produce any documents. Appellant also supplemented her response to appellee=s request regarding testifying expert witnesses by supplying the name and contact information of her reconstruction expert, Dr. Mike E. James, Jr., and further stated: ACurriculum Vitae of Mike E. James, Jr., Ph.D., P.E. has been previously produced. A copy of Dr. Mike E. James= file is available in this office for review upon request.@ On April 12, 2004, shortly before trial, appellant submitted her second supplemental response to appellee=s requests for disclosure and her first supplemental responses and objections to appellee=s requests for production of documents. In response to appellee=s request about economic damages, appellant stated that her income tax returns from 1999-2002 had been previously produced. Regarding her testifying expert, appellant stated that A[t]he basis of his testimony will be reconstruction of the accident and causation,@ and reiterated that ACurriculum Vitae of Mike E. James, Jr., Ph.D., P.E. has been previously produced. A copy of Dr. Mike E. James= file is available in this office for review upon request.@ Similarly, in response to appellee=s Request for Disclosure (j), appellant repeated that A[appellant=s] medical bills are available in this office for review upon request.@ Appellant gave the same response to appellee=s Request for Production No. 6, which asked for A[c]opies of all medical records, reports, x-rays, bills and other documentation relating to the injuries or damages asserted by [appellant].@ In a letter dated April 19, 2004, appellee demanded that appellant produce the requested documents. Appellant responded once more that the documents were available in her attorney=s office, and also asked whether appellee desired an expert report or an expert deposition. Appellee did not reply, but filed a motion to strike in early May 2004, alleging that appellant had failed to produce the requested documents and to provide the requisite information about her expert witnesses. On May 11, 2004, appellee offered to settle for $50,000, the limits of appellee=s insurance policy. Although the offer did not contain a specific time-frame, it referenced the impending hearing on the motion to strike and the trial. The offer also stated that Athis offer is made with the understanding that the [appellant] will execute a full and final release of any and all claims which are or could have been asserted and for a full dismissal of the above-referenced lawsuit.@ When the case proceeded to trial, the court excluded the expert testimony and documents referenced in appellee=s motion to strike. The court also excluded the testimony of two doctors regarding the reasonableness of certain medical expenses, so that the jury heard evidence of $59,562.96 in damages instead of $83,976.00. The jury awarded $3,673.00 in damages after finding that appellant and appellee were equally at fault. After the verdict, appellant purported to accept the settlement offer, and filed a motion for new trial and to enforce the settlement on July 9, 2004. The trial court denied this motion and appellant appealed, alleging three points of error: (1) the settlement offer is binding and should be enforced; (2) the exclusion of Dr. James= testimony was erroneous and resulted in an erroneous verdict; and (3) the exclusion of expert testimony addressing the reasonableness and necessity of certain medical expenses was erroneous. Analysis In her first point of error, appellant alleges that she properly accepted appellee=s pre-trial settlement offer after the jury reached a verdict, and therefore that the settlement agreement is enforceable. We disagree. The Fifth Circuit has recognized Texas courts= definition of Asettlement@ as Athe conclusion of a disputed or unliquidated claim, and attendant differences between the parties, through a contract in which they agree to mutual concessions in order to avoid resolving their controversy through a course of litigation.@ McCleary v. Armstrong World Industries, Inc., 913 F.2d 257, 259 (5th Cir. 1990). Because settlements are contracts, basic contract principles apply. Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc., 68 S.W.3d 737, 741 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). One such principle is that the offeree=s power of acceptance does not continue indefinitely, but terminates after a reasonable time. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App.CHouston [14th Dist.] 2005, no pet.); see also Restatement (Second) of Contracts _ 41(1) (1981) (AAn offeree=s power of acceptance is terminated at the time specified in the offer, or if no time is specified, at the end of a reasonable time.@). What constitutes a reasonable time depends on the circumstances in each case, including the nature and character of the thing to be done and the difficulties surrounding and attending its accomplishment. Id.; see also Restatement (Second) of Contracts _ 41(2) (1981) (AWhat is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made.@). Determining what constitutes a reasonable time may become a question of law where the significant facts are not in dispute. Christy v. Andrus, 722 S.W.2d 822, 824, (Tex. App.CEastland 1987, ref=d. n.r.e.). Furthermore, if an offer contains terms indicating that it expires at a certain time, the offer cannot be accepted after that time has passed. Lacquement v. Handy, 876 S.W.2d 932, 936 (Tex. App.CFort Worth 1994, no pet.). In determining whether an offer contains a fixed time limit, the court must view the offer in light of all the surrounding circumstances. Id. In cases of doubt, the court should adopt the meaning that is more favorable to the offeree. Id. Examining the offer in light of all the surrounding circumstances, we find that appellant=s reasonable time for acceptance ended when she proceeded to trial; therefore, appellant=s power of acceptance no longer existed when she tried to accept the settlement offer post-trial. Even when construed against the drafter, the offer=s language clearly suggests that the purpose of the offer was to avoid a trial and its inherent variables and uncertainties. Although the offer does not mention a specific deadline, appellee states that Ain light of the impending trial and the Motion to Strike Exhibits pending before the Court, I am hopeful that this case may be resolved.@ Appellee also explains that Athis offer is made with the understanding that the [appellant] will execute a full and final release of any and all claims which are or could have been asserted and for a full dismissal of the above-referenced lawsuit.@ This language suggests that the offer would expire once trial began, or certainly once the jury reached a verdict. Therefore, the settlement offer had expired by its own terms by the time appellant attempted to accept. Furthermore, finding that appellant=s power of acceptance terminated once the case proceeded to trial is consistent with the above-mentioned definition of a settlement: Aa contract in which [parties] agree to mutual concessions in order to avoid resolving their controversy through a course of litigation.@ McCleary, 913 F.2d at 259 (emphasis added).[1] Appellant urges us to follow Padilla v. LaFrance, where the supreme court held that writings between the parties constituted a valid Rule 11 agreement. See Padilla v.LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). However, we find that case distinguishable. In Padilla, the plaintiffs= attorney, Mr. Steidley, made a demand for policy limits on April 10th, and required payment by 5:00 on April 23rd. After trying unsuccessfully to contact Steidley to discuss medical liens, the insurance adjuster, Mr. Bradshaw, faxed a letter on April 23rd to confirm the settlement agreement; however, he did not mail any checks. That same day, Steidley responded that Athis letter will confirm that the above referenced matter has been settled,@ and asked the insurance company to forward the checks. Bradshaw received Steidley=s confirmation on the morning of April 24th, and defendant=s attorney, Mr. Chandler, tendered the checks a week later. However, Steidley refused to accept the checks and claimed that the defendant had not timely accepted the April 10th offer. All of these communications took place before trial.[2] The supreme court held that the writings constituted a binding settlement agreement, reasoning that Steidley=s confirmation that Athe above referenced matter has been settled@ indicated that the defendant could timely accept without immediately tendering the checks, despite the language of the original offer. However, in the present case, there were no such pre-trial settlement confirmations between the attorneys. As previously discussed, appellee made the offer before trial, but appellant attempted to accept only after the jury awarded a mere $3,673.00 in damages. Additionally, the offer explicitly referenced the impending trial and stated that it was made with the understanding that appellant would release all claims and fully dismiss the lawsuit. Unlike in Padilla, there is no indication that appellee consented to the alteration of any of the offer=s terms; therefore, the offer expired according to its terms when trial commenced, as did appellant=s reasonable time for acceptance. Appellant also suggests that the Stowers doctrine extended appellant=s time to accept the settlement. However, appellant neither cites authority to support this position nor explains her reasoning. Therefore, we will not consider this argument. Tex. R. App. P. 38.1(h) (A[Appellant=s] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@) Thus, in light of all the surrounding circumstances, we find that a reasonable time for acceptance had passed and that appellant=s power of acceptance had terminated by the time she attempted to accept the settlement offer. Accordingly, we overrule appellant=s first point of error. In her second point of error, appellant alleges that the trial court erred by excluding the reconstruction testimony of Dr. James, and that this resulted in an erroneous verdict. We review a trial court=s decision relating to exclusion of expert testimony under an abuse of discretion standard. Dewitt v. Prudential Ins. Co. of Am., 717 S.W.2d 414, 417 (Tex. App.CHouston [14th Dist.] 1986, no writ). To establish an abuse of discretion, the complaining party must show that the trial court=s actions were arbitrary or unreasonable in light of all the circumstances of a particular case. Id. The trial court did not abuse its discretion by excluding the testimony of Dr. James based on the insufficiency of appellant=s responses to appellee=s requests for disclosure. When a testifying expert is employed by the responding party, the requesting party may request disclosure of Athe general substance of the expert=s mental impressions and opinions and a brief summary of the basis for them,@ as well as Aall documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert=s testimony.@ Tex. R. Civ. P. 194.2(f)(3), (f)(4)(A). A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce into evidence the material or information that was not timely disclosed, absent a showing of good cause or lack of unfair surprise or prejudice to the requesting party. Tex. R. Civ. P. 193.6(a)(1), (a)(2). The party seeking to introduce the evidence has the burden of establishing good cause and lack of unfair surprise or prejudice. Tex. R. Civ. P. 193.6(b). The trial court decides in its discretion whether the party has established good cause or lack of unfair surprise or prejudice. Dewitt, 717 S.W.2d at 417. Appellee=s Request for Disclosure (f)(4)(A) asked for A[a]ll documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert=s testimony.@ However, when appellant first responded in September, she listed only certain experts= contact information. No information about Dr. James appeared in this initial response. Appellant supplied Dr. James= contact information in February, and also stated: ACurriculum Vitae of Mike E. James, Jr., Ph.D., P.E. has been previously produced. A copy of Dr. Mike E. James= file is available in this office for review upon request.@ In April, appellant revealed that the general substance of Dr. James= testimony would be Areconstruction of the accident and causation,@ and repeated that ACurriculum Vitae of Mike E. James, Jr., Ph.D., P.E. has been previously produced. A copy of Dr. Mike E. James= file is available in this office for review upon request.@ Later in April, in response to appellee=s letter, appellant reiterated that the requested materials were available in her attorney=s office, and inquired whether appellee desired an expert report or an expert deposition. Appellant never provided appellee with an expert report; furthermore, appellant acknowledges that Dr. James= file did not contain an expert report. The trial court did not err by finding that appellant=s responses were inadequate under Rule 194. Although appellant urges us to follow the reasoning in Garza v. Tan, we find the present case to be distinguishable. See Garza v. Tan, 849 S.W.2d 430 (Tex. App.CCorpus Christi 1993, no pet.). In Garza, the appellants claimed that the appellees failed to supplement their interrogatories and that the substance of their expert=s testimony was not timely produced as required under Rule 166b(6)(b).[3] Id. at 433. Rule 166b(6)(b) required a supplemental response to include only Athe name, address and telephone number of the expert witness and the substance of the testimony concerning which the expert witness is expected to testify, as soon as is practical, but in no event less than thirty (30) days prior to the beginning of trial except on leave of court.@ Id. at 434. The appellees= interrogatories included the names, addresses, and phone numbers of their expert doctors and stated that they would testify about the standard of care and medical treatment. The appellees also provided each doctor=s expert reports. Id. The Garza court held that the appellees= interrogatories and expert reports adequately disclosed the substance of their experts= testimony, and therefore, that the appellees= responses were timely. Id. However, in the present case, appellant=s responses to appellee=s requests for disclosure did not comply with Rule 194.2(f). As we previously stated, Rule 194.2(f) requires disclosure of Athe general substance of the expert=s mental impressions and opinions and a brief summary of the basis for them,@ as well as any reports prepared or reviewed by the testifying expert. Tex. R. Civ. P. 194.2(f)(3), (4)(A). Although appellant stated vaguely that the substance of Dr. James= testimony would be Areconstruction of the accident and causation,@ appellant failed to disclose Dr. James= general opinions about those matters, and likewise failed to provide a brief summary of the basis for his opinions. Furthermore, unlike the appellees in Garza, appellant never provided appellee with Dr. James= expert report; indeed, no such report ever existed in Dr. James= file. Thus, because appellant failed to make, amend, or supplement her response to include all the required information regarding Dr. James= testimony, the trial court did not abuse its discretion by excluding Dr. James= testimony under Rule 193.6(a). See Moore v. Mem=l Hermann Hosp. Sys., Inc., 140 S.W.3d 870, 875 (Tex. App.CHouston [1st Dist.] 2004, no pet.). Therefore, we overrule appellant=s second point of error. In her third point of error, appellant alleges that the trial court erred by not admitting into evidence the full amount of appellant=s medical bills. We disagree. In a document entitled ADolores Jennings= Summary of Medical Charges of Undisputed Charges that are Reasonable and Necessary For the Treatment But as to Which Defendant Disputes Causation From the Accident on 5/24/01,@ the parties stipulated that appellant=s medical bills totaled $59,562.96. The record does not support appellant=s contention that she is entitled to $83,976.00; any testimony that such an amount was reasonable and necessary does not change the fact that appellant had stipulated to $59,562.96. See Perry v. Brooks, 808 S.W.2d 227, 228 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (trial court properly excluded additional medical bills because they conflicted with parties= stipulation that the reasonable and necessary bills totaled $3000); see also Handleman v. Handleman, 608 S.W.2d 298, 301 (Tex. Civ. App.CHouston [14th Dist.] 1980, writ ref=d n.r.e.) (stipulations are conclusive as to the facts stipulated and to all matters necessarily included therein). Therefore, the trial court did not abuse its discretion by admitting evidence of medical expenses only in the amount to which appellant stipulated. Accordingly, we overrule appellant=s final point of error, and therefore affirm the holding of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed October 20, 2005. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. [1] While we recognize that some cases settle post-trial, this not does affect our analysis in this case. [2] The trial court granted summary judgment in favor of plaintiffs on the settlement issue. The court of appeals affirmed, concluding that the letters did not constitute an enforceable Rule 11 agreement. The supreme court held that the letters did constitute a valid Rule 11 agreement, and consequently reversed and remanded with instructions. Padilla, 907 S.W.2d at 458. [3] This rule has been revised and is now contained in Rule 193.5. Tex. R. Civ. P. 193.5(b).