William Schulze and Susan Schulze v. Jonathan Cardenas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00001-CV
__________________

WILLIAM SCHULZE AND SUSAN SCHULZE, Appellants

V.

JONATHAN CARDENAS, Appellee
__________________________________________________________________

On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 19-10-14090-CV
__________________________________________________________________

MEMORANDUM OPINION

William and Susan Schulze (the Schulzes) appeal from a take-

nothing judgment following the bench trial of a case in which they alleged

they were rear-ended by a truck driven by Jonathan Cardenas. On

appeal, the Schulzes argue that the trial court abused its discretion by

imposing a death penalty sanction—excluding the testimony of the

surgeon who operated on William Schulze—for their attorney’s failure to

comply with the requirements of the trial court’s Scheduling Order. The
1
Scheduling Order required the parties to designate the pages and lines

of the deposition testimony the parties intended to offer into evidence

fourteen days before trial, and the Schulzes’ attorney didn’t file line-and-

page designations until the day of the trial.

To successfully reverse a trial court’s judgment based on an error

in excluding evidence, the appellant must demonstrate either that (1) the

trial court erred by excluding the evidence and the error “probably caused

the rendition of an improper judgment,” or (2) that the error “probably

prevented the appellant from properly presenting the case to the court of

appeals.” 1 The record shows that after the trial court announced that the
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surgeon’s deposition testimony would not be admitted into evidence in

the trial, the trial court asked whether the parties had “any evidence that

you’re going to want to present?” The Appellants’ attorney (who also

represented the Schulzes in the trial) told the trial court that the trial

court’s ruling put her “in a difficult position because without [the

surgeon’s] deposition testimony, with reference to the injuries and the

causation, . . . it’s a very difficult case for us to be able to make at this

point.” Then, the attorney for Mr. Cardenas told the trial court that his

1Tex. R. App. P. 44.1(a).

2
client would try the matter to the bench and waive a jury. The Appellants’

attorney agreed to the suggestion to present the case to the bench. When

the Schulzes called no witnesses, Cardenas’s attorney moved for a

directed verdict based on the Schulzes’ attorney’s representation “that

they’re going to be unable to establish causation in this case.”

The record shows that before the trial court granted Cardenas’s

motion for directed verdict, the Schulzes’ attorney failed to make an offer

of proof by presenting evidence on the issues of Cardenas’s negligence

and evidence on whether Cardenas’s negligence was a proximate cause

of injuries the Schulzes alleged they suffered when their car was rear-

ended by Cardenas’s truck. “To preserve error concerning the exclusion

of evidence, the complaining party must actually offer the evidence and

secure an adverse ruling from the court.” 2 No offer of proof was made
1 F

here, as the record doesn’t show that the Schulzes’ attorney proffered any

depositions into evidence or summarized them by making a bystander’s

bill. Because we reject the Schulzes’ argument that the trial court’s ruling

excluding their surgeon’s testimony amounted to a death penalty

2Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331 (Tex. App.—Dallas

2008, no pet.); see also Tex. R. Evid. 103(c) (allowing a party to present
the evidence to the trial court in an offer of proof “as soon as practical”).
3
sanction because they failed to create a record sufficient to establish that

the ruling precluded their ability to try the case on its merits, we will

affirm.

Background

The Schulzes sued Cardenas for negligence, alleging they were

injured when he rear-ended their car with his truck. 3 Their petition
2 F

includes a jury demand. After Cardenas was served, an attorney

appeared and answered the suit on Cardenas’s behalf.

In January 2020, the judge of the court in which the case was

initially filed—Judge Jennifer Robin of the 410th Judicial District

Court—signed a Scheduling Order, which required the parties to comply

with several deadlines before that Scheduling Order set the case for trial,

which was on October 12, 2020. Among other things, the Scheduling

Order provided that the parties file and serve “all deposition excerpts

that may be offered at trial in lieu of live testimony, with specific

designated page and line numbers” by October 1, 2020.

3Initially,the Schulzes sued Jonathan and his mother, Areli
Cardenas, but they nonsuited Areli when they filed their First Amended
Petition.
4
In August 2020, although no order of transfer to another trial court

is included in the Clerk’s Record, the case was apparently transferred to

the 410th District Court. In August, the judge of the 457th Judicial

District, Judge Vince Santini, on his own motion cancelled the

Scheduling Order of the 410th District Court and adopted another

Scheduling Order, which among other things established a fifteen-day

deadline for filing motions for continuance absent “exigent

circumstances.”

Under the August 2020 Scheduling Order, the parties were

required to submit a Joint Notice, which required the parties to advise

the trial court whether the case was ready for trial, how long they

estimated the trial would take, and whether there were any pending

motions before the court. The Joint Notice also required that the parties

exchange exhibit lists, witness lists, and “[a]ll deposition excerpts that

may be offered at trial in lieu of live testimony . . . by specific designated

pages and line numbers” no later than fourteen days before the trial.

Under Judge Santini’s Joint Notice, these lists were also required to be

filed with the court. In September 2020, the trial court set the case for

trial on January 19, 2021.

5
In January 2021, the parties missed the fourteen-day-before-trial

deadline for filing their Joint Notice by one day. On the day after the

Joint Notice was due (but not filed), the trial court dismissed the case for

want of prosecution. One day later, the Schulzes filed an unopposed

Verified Motion to Reinstate the case. In their Motion to Reinstate, the

Schulzes alleged that even though the parties had missed the trial court’s

deadline for filing the Joint Notice under the trial court’s Scheduling

Order, their failure had been unintentional, had resulted from a mistake,

and “it was not made with any conscious indifference” to the trial court’s

orders. The Schulzes also asked the trial court to continue the trial so

that the parties could enter settlement negotiations since the parties had

completed written discovery and had also just the day before completed

“the deposition of Plaintiff’s surgeon, Dr. [David] Tomaszek.”

The trial court granted the request to reinstate the case and signed

an order resetting the trial for March 2021. In the next ten months, the

trial court set and reset the case several more times, with the last trial

setting of October 4, 2021. Each of the trial court’s notices extending the

trial date includes boilerplate language stating: “Unless Otherwise

Ordered By The Court, The Other Dates As Calculated From The Trial

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Date Stated In The Docket Control Order Signed On February 26, 2021

Remain The Applicable Deadlines For This Case Regardless Of The

Reason For The Reset.” 4 3 F

The Schulzes, however, didn’t strictly comply with the fourteen-

day-pretrial deadlines in the trial court’s February 2021 Notice of Reset:

each Joint Notice of Reset required the parties to file “all pretrial

materials described in the Docket Control Order signed on 01/19/2020

. . . 14 days before [October 4, 2021].” For example, the Schulzes’ attorney

didn’t meet the fourteen-day deadline with respect to the Exhibit List

and Trial Witness lists—the Schulzes’ attorney filed these lists on

September 28, 2021, six days rather than fourteen days before the

October 4, 2021, trial. Moreover, even though the Schulzes’ Witness List

reflects that the plaintiffs reserved the right to call Dr. Tomaszek “live or

by deposition[,]” their attorney failed to file the page and line

designations required by the January 2020 Scheduling Order (which is

4We have altered the language we have quoted from the Notice of

Trial to make it easier to read by capitalizing only the first letter of each
word, but the language quoted in the Notice appears the Notice in all
caps.

7
referred to by the trial court in its Notices of Reset as the Docket Control

Order) to specify what parts of Dr. Tomaszek’s deposition the plaintiffs

were planning to offer into evidence in the trial on October 4, 2021.

On the same day the Schulzes’ attorney filed the Exhibit and Trial

Witness Lists, she filed an Agreed Motion For Continuance. In the

Agreed Motion, the Schulzes’ attorney asked the trial court to continue

the case from its setting on October 4 because Dr. Tomaszek wasn’t

available “to testify at trial due to serious health matters,” which the

motion then goes on to specifically describe. The Schulzes’ attorney

verified the Agreed Motion for Continuance, and in her verification the

attorney stated that the information in the Agreed Motion was based on

information that she had obtained from Dr. Tomaszek’s office about the

doctor’s availability and the reasons his office provided about why the

doctor wasn’t available to testify in Conroe in a trial conducted during

the week of October 4th. Neither the Agreed Motion for Continuance nor

the information in the Verification that accompanies the motion state

when the plaintiff’s attorney first learned that Dr. Tomaszek would not

be available to appear for the trial.

8
About four hours after the Schulzes’ attorney filed the Agreed

Motion for Continuance, the trial court signed an Order Denying

Continuance. 5 On October 1, 2021, (three days before the trial), the
4 F

Schulzes amended their witness list to reflect that they intended to

present Dr. Tomaszek’s testimony by presenting his deposition testimony

alone.

5The pleadings don’t show that the parties submitted the Agreed

Motion to the trial court by submission or that the parties appeared in
court on the motion and argued the motion. The Order denying the
continuance states “this Court considered” . . . “the Agreed Motion for
Continuance and finds it should be denied.” In the Final Judgment, the
trial court added that it denied the Agreed Motion for Continuance on the
day it was filed because “it was untimely, the Plaintiffs had seven trial
settings to prepare, and the Plaintiffs had the ability to designate
excerpts in the nine months that followed Dr. Tomaszek’s deposition.”
The trial court was clearly frustrated with the number of times the
case had been set and reset. Even so, Rule 330(d) provides that “the court
shall respect written agreements of counsel for postponement and
continuance if filed in the case when or before it is called for trial unless
to do so will unreasonably delay or interfere with other business of the
court.” Tex. R. Civ. P. 330(d). On appeal, however, the appellants have
not raised an issue complaining that the trial court abused its discretion
by failing to conduct a hearing on their Agreed Motion for Continuance
or that it abused its discretion by failing to grant their Motion for
Continuance based on its failure to comply with Rule 330(d). And
importantly, it is not this Court’s role to address unassigned error. See,
e.g., Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998);
Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex. 1987).
9
At just after midnight on October 4, 2021, the Schulzes filed a

document listing the pages and lines from Dr. Tomaszek’s deposition that

they intended to ask the trial court to admit into evidence during the

trial. The portions of the testimony corresponding to the page and line

numbers listed in the document that the plaintiffs’ attorney filed is not

attached to the that document the plaintiffs’ attorney filed with the

District Clerk. On the morning of October 4, which was the first day the

case was on the court’s trial docket for the week, the attorneys for the

parties appeared before Judge Santini for a pretrial conference. During

the pretrial conference, Judge Santini told the attorneys that they would

probably be going to trial in the case before another judge either that day,

tomorrow, or Wednesday. Turning to address other pretrial matters,

Cardenas’s attorney objected to and told the trial court that the plaintiffs

had not timely designated their exhibits, witnesses, and the excerpts

from the depositions they intended to present into evidence as required

by the trial court’s Scheduling Order fourteen days before the trial.

As to William Schulze’s surgeon, Dr. Tomaszek, Cardenas’s

attorney argued that the plaintiffs’ failure to timely identify the doctor

as a witness fourteen days before the trial who would be testifying by

10
deposition alone and failure to provide the defense with the pages and

lines from the doctor’s deposition left the defendant without enough time

to prepare a response.

In response to these arguments, the Schulzes’ attorney told the

court that the parties had taken Dr. Tomaszek’s deposition “months

previously.” Because the defendant’s attorney had “all this information,”

the plaintiffs’ attorney suggested, there could be no “surprise” about what

Dr. Tomaszek would say. She also explained why, for reasons related to

his health, Doctor Tomaszek couldn’t appear for the trial during the week

of October 4th. Responding to the plaintiffs’ attorney’s argument, Judge

Santini explained that because the Schulzes’ designations were untimely

and violated the trial court’s Scheduling Order, the defendant’s attorney

didn’t “have a chance to object[,]” and the court had been deprived of the

opportunity to rule on whatever objections the defense might have raised

to the doctor’s testimony before starting the trial.

After granting the defendant’s motion to exclude Dr. Tomaszek’s

testimony, the trial court asked the plaintiffs’ attorney “do y’all have any

evidence that you’re going to want to present?” The plaintiffs’ attorney

responded that she was “in a difficult position because without Dr.

11
Tomaszek’s deposition testimony, with reference to the injuries and the

causation, . . . it’s a very difficult case for us to be able to make at this

point.” After the defendant’s attorney told the trial court the defendant

would waive a jury, he asked the trial court to resolve the matter “right

now” in a trial to the bench. At that point, the trial court asked the parties

for a motion, and Cardenas’s attorney “moved for a directed verdict based

on [the representation by the plaintiffs’ attorney] that they’re going to be

unable to establish causation in this case.” The plaintiffs’ attorney didn’t

object, didn’t ask to call any witnesses, and didn’t ask the trial court for

the opportunity to make an offer of proof.

When the trial court ruled, it announced that the court was “going

to grant the directed verdict on causation in this - - matter, although

they’re going to say that no evidence was presented, so this is kind of a

strange thing because there’s – the whole point here for Justices is that

we have juries – a jury ready or here ready. The Court’s willing to go

forward and pick a jury, but the parties, to save the jury’s time, because

this is the big issue going forward, the main issue for the Justices to look

at would be the Court’s ruling on Dr. Tomaszek.” Following that

explanation, the trial granted the defendant’s motion for directed verdict.

12
On October 5, 2021, the trial court signed a judgment ordering that

“Plaintiffs, Williams Schulze and Susan Schulze, take nothing of

Plaintiffs’ suit against Defendant, Jonathan Cardenas.” Less than thirty

days later, the Schulzes filed a Motion for New Trial. In their motion,

they argued that the trial court abused its discretion when it denied their

motion for continuance. The Schulzes’ motion also argued that the trial

court abused its discretion by excluding the designated excerpts they

wanted to present of Dr. Tomaszek’s deposition from the jury because the

ruling excluding his testimony operated as a death penalty sanction,

which was more severe than necessary and punished the Schulzes “for a

misstep of their attorney,” for which they weren’t responsible. The trial

court denied the Motion for New Trial. The Schulzes timely filed their

notice of appeal.

Analysis

In one issue, the Appellants argue the trial court abused its

discretion in excluding Dr. Tomaszek’s deposition testimony because the

ruling amounts to “a death penalty sanction” with consequences that fall

on them rather than their attorney when their attorney is the individual

who is responsible for the violation the trial court intended to punish.

13
Under the circumstances, the Appellants conclude that the sanction is

grossly excessive and should be reversed under the standards set out in

TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex.

1991).

In the proceedings the trial court conducted on the first day of the

trial, the plaintiffs’ attorney told the trial court that even though Dr.

Tomaszek’s testimony represented “the main part” of William Schulze’s

“medical,” the plaintiffs also had a chiropractor that they could call

during the trial. During the pretrial hearing, the Schulzes’ attorney

never argued that a ruling excluding Dr. Tomaszek’s testimony would

amount to a death penalty sanction. Instead, the plaintiffs’ attorney

argued the case would be “a difficult case for us . . . to make” without the

benefit of Dr. Tomaszek’s testimony.

To be fair, the trial court was aware that Dr. Tomaszek’s testimony

would generally be relevant to the tying of at least some of the medical

expenses that William Schulze incurred to the collision with Cardenas,

as the trial court noted in the hearing that without Dr. Tomaszek,

“causation and medicals are going to be an issue for your damages and

whatnot.” Even so, when the trial court asked the plaintiffs’ attorney if

14
she had any evidence she wanted to present, the trial court hadn’t

mentioned that it would entertain a motion for directed verdict should

the plaintiffs select a jury and try their case. Had that been done, the

plaintiffs could have relied on whatever other evidence the trial court

might have admitted into evidence in the trial relevant to establishing

causation, including, but not limited to, testimony from the witnesses

listed in the Plaintiffs’ Witness List or the evidence in exhibits listed in

the Plaintiffs’ Exhibit List. In the Exhibit List, for example, the plaintiffs

identified medical records from the Schulzes’ healthcare providers,

including Dr. Tomaszek. In their witness list, they listed a chiropractor,

whom their attorney mentioned in the pretrial hearing that they

intended to call to testify in the trial. There is also another physician they

didn’t mention listed in their Witness List who is listed as a witness they

were calling “live via Zoom,” Dr. Neil Badlani. 6 The trial court’s record
5 F

doesn’t include his deposition or a bill of proof explaining why he doesn’t

6A review of the Clerk’s Record reflects that the attorney for
Cardenas retained Dr. Badlani, an orthopedic surgeon, to file a counter-
affidavit to dispute the reasonableness and necessity of the chiropractic
bills that the Schulzes’ were alleging were caused by the wreck. That
said, Cardenas’s attorney never listed Dr. Badlani on the Defendant’s
Witness List, a list that was timely filed before the trial.
15
possess the qualifications to address whether Dr. Tomaszek’s surgery is

related in reasonable medical probability to the wreck.

At times, a ruling excluding an expert’s testimony impairs the

plaintiff’s presentation of their case even though the ruling doesn’t

preclude a trial of the case on its merits. On appeal, the Appellants have

not argued that they needed Dr. Tomaszek’s testimony to establish that

Cardenas’s negligence caused the collision between Cardenas and

William Schulze. Instead, they argue that they needed Dr. Tomaszek’s

testimony because he “was the only witness who could fully testify

regarding causation and damages, particularly the details of William’s

surgery.” That said, after the defendant’s attorney moved for a directed

verdict on causation, the Schulzes’ attorney didn’t offer any evidence to

prove that Cardenas’s negligence proximately caused the collision, and

there is nothing in the Clerk’s Record that shows that Cardenas admitted

that he was negligent or that his negligence proximately caused the

wreck.

Additionally, the record the Appellants created when they were in

the trial court isn’t sufficient to support their claim that the trial court’s

16
ruling constitutes a death penalty sanction. 7 No doubt, the trial court was
6 F

aware that Dr. Tomaszek had performed surgery on William Schulze

based on what the Schulzes’ attorney represented and that the Schulzes’

attorney was depending on Dr. Tomaszek to establish what she described

as much of William’s “medical.” That said, the Schulzes’ attorney didn’t

provide Judge Santini with the specifics of Dr. Tomaszek’s testimony in

the pretrial hearing, specifically whether he had testified that in his

opinion William’s surgery was reasonably related within a reasonable

medical probability to the automobile collision between Cardenas and

Schulze. And importantly, the Schulzes’ attorney never told Judge

Santini that the Schulzes’ case depended entirely on Dr. Tomaszek’s

testimony to establish that the rear-end collision with Cardenas in

reasonable medical probability caused William’s injury and made his

surgery necessary. For example, the Plaintiffs’ Exhibit List includes

7See In re Garza, 544 S.W.3d 836, 843-44 (Tex. 2018) (explaining

the plaintiff was entitled to mandamus relief in a case in which the trial
court excluded the plaintiff’s surgeon’s testimony and medical records
when it is the witnesses from whom the records were subpoenaed were
the parties responsible for failing to provide the various records based on
the relator’s argument that “she will almost certainly suffer a direct
verdict as to her claim for past hospital expense and the majority of her
damages”).
17
medical records from Dr. Tomaszek’s office, but without a bill of proof

there is no way to know whether those records might include medical

records tying William’s surgery to the wreck. 8 The trial court also never
7 F

ruled on the other objections the defendant’s attorney raised to the

plaintiffs’ failure to comply with the requirements of the Joint Notice,

including the defendant’s objection to admitting the documents listed in

the Plaintiffs’ Exhibit List, records that were also filed less than fourteen

days before the trial.

After the trial court ruled on Cardenas’s motion for directed verdict,

Judge Santini asked the Schulzes’ attorney whether she had any

evidence that she wanted to present. When she called no witnesses and

didn’t ask the trial court for the opportunity to make an offer of proof, the

defendant’s attorney moved for a directed verdict. During the

proceedings on October 4th, the plaintiffs’ attorney never argued that the

8Cardenas’s attorney objected to all the Schulzes’ late designations,

so the objections would have included these records. But the trial court
never ruled on these objections. The record shows that in January 2020,
the Schulzes’ attorney served affidavits from various medical providers
on the defendant’s attorney. From the notice the plaintiffs’ served, the
affidavits appear to have been tied to billing or medical records from the
plaintiffs’ doctors or other health care providers, and in February 2020,
the defendant’s attorney filed counter-affidavits addressing the medical
expenses incurred by William Schulze.
18
ruling excluding Dr. Tomaszek’s testimony operated as a death penalty

sanction. Instead, the plaintiffs’ attorney told the trial court that without

Dr. Tomaszek’s testimony “it’s a very difficult case for us to be able to

make[.]”

Based on the record presented to the trial court, we conclude the

Appellants have not established that the trial court’s ruling amounts to

a death penalty sanction. As mentioned, the plaintiffs’ attorney told the

trial court that without Dr. Tomaszek the case would be “difficult.” Yet

the attorney did not say that without the doctor’s testimony the plaintiffs

would have no evidence to tie William’s surgery and medical expenses to

the rear-end collision with Cardenas, which occurred in December 2017.

For example, the record in the trial court and the appellate record doesn’t

include the medical records that the plaintiffs listed in their Exhibit

List—the medical and billing records from One Step Diagnostic, Parkway

Surgery Center, VIP Surgical Center, and Tomaszek Neurosurgical

Associates, among others. The plaintiffs’ attorney didn’t obtain a ruling

from the trial court that the court wouldn’t admit these records in the

trial. And on a record that doesn’t demonstrate what information is in

the plaintiffs’ medical and billing records and without knowing whether

19
these records would have been admitted in a trial, we can’t say that the

plaintiffs couldn’t have tied William’s surgery to the rear-end collision.

Additionally, during the hearing on October 4th, the plaintiffs’

attorney failed to have the court reporter mark and offer the excerpted

portions of Dr. Tomaszek’s deposition into the record, which would have

allowed the trial court to have reviewed the doctor’s testimony before

deciding whether to exclude it. To determine whether a sanction operates

as a death penalty sanction (had that argument been made), the trial

would have needed to consider the information in the medical and billing

records listed in the Plaintiffs’ Exhibit List, even though this list was not

filed fourteen days before the trial because the trial court could have

allowed those records into evidence, had not ruled that it would exclude

them, even though the defendant had lodged an objection to them

because the plaintiffs were tardy in complying with the listing them

under the Scheduling Order. Yet because the plaintiffs never obtained a

ruling from the trial court on the defendant’s objections to their late-filed

Exhibit List and because the plaintiffs’ attorney didn’t make an offer of

proof, we don’t have sufficient information in the appellate record to

determine whether the trial court’s ruling precluded the plaintiffs from

20
proving that Cardenas’s negligence was a proximate cause of Dr.

Tomaszek’s surgery on William after the wreck or operated as a death

penalty sanction, as they have argued in their appeal.

To preserve error, the Texas Rules of Evidence generally require

that a party make the trial court aware of what the substance of the

witness’s testimony will be and how excluding the testimony will affect

the trial. 9 That wasn’t done in the context of the motion for directed
8 F

verdict ruling at issue in this appeal.

Generally, a reviewing court must decide whether a ruling to

excluding evidence operated as a death penalty sanction based on the

information in the plaintiffs’ offer of proof unless the information

necessary to make that decision is apparent based on the context of the

evidence the trial court was asked to exclude. 10 Without the benefit of an
9 F

9Tex. R. Evid. 103 (a)(2) (if a ruling excludes evidence, a party must

inform “the court of its substance by an offer of proof, unless the
substance was apparent from the record”); see In re Garza, 544 S.W.3d at
843.
10See Farrell v. Regent Care Ctr. of the Woodlands, No. 09-15-00230-

CV, 2016 Tex. App. LEXIS 13794, at *35-36 (Tex. App.—Beaumont Dec.
29, 2016, no pet.) (holding that the appellant failed to demonstrate that
the error was preserved when the record shows the plaintiff’s attorney
didn’t make “an offer of proof to show what testimony he would have
elicited from Dr. Garcia if she had been permitted to testify”); Bobbora,

21
offer of proof—an offer that included at least Dr. Tomaszek’s

deposition—the appellants cannot demonstrate that if the trial court

erred in excluding Dr. Tomaszek’s testimony that its error “probably

caused the rendition of an improper judgment.” 11 1 0 F

On November 3, 2021, the Schulzes’ attorney filed a Motion for New

Trial. But neither the transcript, nor the excerpts from Dr. Tomaszek’s

deposition are attached to the Motion. 12 The medical records discussed
1 1 F

above are also not attached to the Motion for New Trial. To prevail on

their Motion for New Trial, the burden remained on the Schulzes to

establish that the trial court erred and that Dr. Tomaszek’s testimony, if

admitted, wouldn’t have been cumulative of other evidence available to

the plaintiffs in the trial. 13
1 2 F

255 S.W.3d at 335 (noting that the “[f]ailure to demonstrate the
substance of the excluded evidence results in waiver”).
11Tex. R. App. P. 44.1(a)(1); see also Waffle House, Inc. v. Williams,

313 S.W.3d 796, 812 (Tex. 2010).
12The Motion for New Trial does not mention the fact that the

plaintiffs attached a copy of Dr. Tomaszek’s deposition transcript to their
Motion to Exclude Texas Medical Board Orders as Exhibit C, which they
filed on September 30, 2021. The Motion for New Trial also does reference
Dr. Tomaszek’s deposition transcript, which is at page 329-400 of the
Clerk’s Record.
13Tex. R. App. P. 44.1(a).

22
Without the benefit of an offer of proof, even were we to determine

that the trial court erred in excluding the deposition excerpts, we could

not say that a ruling excluding Dr. Tomaszek’s deposition operated as a

death penalty sanction without a more fully developed record than the

one before us here. 14 We hold the trial court did not abuse its discretion
1 3 F

by excluding enforcing its Scheduling Order when it gave the Schulzes

the opportunity to fully develop a record sufficient to show that without

the doctor’s testimony the plaintiffs would have no other evidence to tie

William’s surgery to the rear-end collision with Cardenas. 15 Because the
1 4
F

Schulzes have not shown that the sanction was a death penalty sanction,

the trial court’s judgment is affirmed.

AFFIRMED.

HOLLIS HORTON
Justice

Submitted on October 12, 2023
Opinion Delivered March 28, 2024

Before Golemon, C.J., Horton and Wright, JJ.

14See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a), Farrell Care Ctr.,

2016 Tex. App. LEXIS 13794, at *36.
15Id.

23