CROSSOVER: Rule 193.6 Exclusion Cannot Be Converted Into a Surprise Take-Nothing Judgment

D&M Creative Custom Builders, Inc. v. Paul Pearce and Linda Pearce, 09-25-00450-CV, August 31, 2026.

On appeal from 457th District Court, Montgomery County, Texas

Synopsis

Rule 193.6 permits exclusion of inadequately disclosed evidence; it does not permit a trial court to convert that evidentiary ruling into a final take-nothing judgment absent a proper dispositive vehicle. When a court excludes expert or damages evidence under Rule 193.6 and then renders judgment because the plaintiff has “no evidence,” it has effectively granted an unauthorized summary judgment without Rule 166a’s notice and procedure.

Relevance to Family Law

This opinion matters in Texas family litigation because disclosure fights routinely intersect with dispositive pressure points: tracing experts in property characterization disputes, business valuation opinions, reimbursement calculations, fee testimony, social-study and mental-health experts in conservatorship cases, and damages-style proof in tort or contract claims joined to divorce proceedings. The ruling is a useful procedural boundary marker: even if a family court properly excludes late or inadequate expert disclosures, that exclusion does not itself authorize a merits adjudication unless the issue is presented through a recognized dispositive procedure, such as summary judgment, directed verdict, or trial on the merits with the required process.

Case Summary

Fact Summary

The plaintiff, D&M Creative Custom Builders, sued homeowners on a quantum meruit theory, alleging it performed approved upgrades and additions beyond the original home-construction contract and had not been paid for that extra work. The defendants responded and later filed a Rule 193.6 objection aimed at D&M’s expert designations and damages disclosures.

The objection asserted two disclosure defects. First, the defendants argued D&M’s expert disclosures failed to include the experts’ opinions, the bases for those opinions, and compensation information required by Rule 195.5(a). Second, they argued D&M had not adequately disclosed its damages calculation as required by Rule 194.2(b)(4).

After a jury had been empaneled but before jury selection proceeded, the trial court held a pretrial hearing on the Rule 193.6 objection. The court orally granted the objection as to both the expert issue and the damages issue, stated that expert testimony was required for the claimed damages, denied D&M’s oral request for continuance, dismissed the jury, and the next day signed a final take-nothing judgment. The judgment expressly stated that, after considering D&M’s lack of evidence on the elements of its only claim, D&M would take nothing.

D&M moved for reconsideration and new trial, arguing that the ruling functioned as an improper sua sponte summary judgment because the defendants had filed only an evidentiary objection, not a Rule 166a motion. The trial court denied that motion, and D&M appealed.

Issues Decided

• Whether Rule 193.6 authorizes a trial court to render a final take-nothing judgment after excluding a party’s expert and damages evidence for inadequate disclosures.
• Whether a Rule 193.6 evidentiary ruling may substitute for a Rule 166a summary-judgment motion or other authorized dispositive procedure.
• Whether the trial court improperly decided legal merits questions—such as whether expert testimony was required and whether the damages model was legally viable—through a Rule 193.6 objection.
• Whether the resulting take-nothing judgment and denial of post-judgment relief required reversal.

Rules Applied

The court’s reasoning rests on a straightforward distinction between evidentiary sanctions and merits adjudication.

• Texas Rule of Civil Procedure 193.6: bars a party from introducing material, information, or witness testimony not timely or properly disclosed, absent good cause or lack of unfair surprise or prejudice.
• Texas Rule of Civil Procedure 195.5(a): governs required expert-disclosure content, including the expert’s opinions, their bases, and certain background information.
• Texas Rule of Civil Procedure 194.2(b)(4): requires disclosure of the amount and method of calculating economic damages.
• Teer v. Duddleston, 664 S.W.2d 702, 703 (Tex. 1984): confirms that rendition of final judgment without a proper summary-judgment motion is error.
• Accurate Industries, Inc. v. Nelson, No. 09-22-00271-CV, 2025 Tex. App. LEXIS 178, at 17–18 (Tex. App.—Beaumont Jan. 16, 2025, no pet.) (mem. op.)**: explains that Rule 193.6 results in exclusion of undisclosed evidence, but does not authorize elimination of a party’s legal theories.

Application

The Beaumont court treated the problem as one of procedural architecture. The defendants invoked Rule 193.6, which is an exclusion rule. That rule allows a court to keep inadequately disclosed evidence out of trial unless the proponent establishes good cause or lack of unfair surprise or prejudice. But the trial court went further. It not only excluded the evidence; it also concluded that, without that evidence, D&M could not prove its claim, and it rendered a final take-nothing judgment on that basis.

That second step was the appellate defect. The court recognized that the trial court’s ruling effectively decided legal merits questions embedded in the case—whether expert testimony was necessary to prove quantum meruit damages and whether D&M’s damages theory was legally insufficient. Those are not merely evidentiary housekeeping matters. Once the court used the exclusion ruling as the basis for a final merits disposition, the ruling functioned as an unauthorized summary judgment. No Rule 166a motion had been filed. No proper dispositive procedure had been invoked. And the trial court therefore lacked a procedural basis to render a final judgment simply because the evidentiary ruling left one side with a proof problem.

The opinion is especially important because it rejects a common practical shortcut: excluding critical proof on the eve of trial and then declaring that the claimant necessarily loses as a matter of law. Texas procedure does not permit the evidentiary ruling itself to do the work of a dispositive motion. The court can exclude. It cannot, without proper procedure, convert exclusion into a surprise merits judgment.

Holding

The court held that Rule 193.6 authorizes exclusion of untimely or inadequate disclosures, but it does not authorize rendition of a final take-nothing judgment on the merits. A trial court may sustain a Rule 193.6 objection and exclude evidence, but it may not transform that evidentiary ruling into a dispositive judgment absent a proper summary-judgment motion or other recognized merits procedure.

The court further held that the trial court’s judgment functioned as an improper summary judgment because the defendants filed only a Rule 193.6 objection and not a Rule 166a motion. Under Teer v. Duddleston, rendition of judgment in that posture was erroneous.

Accordingly, the court reversed the trial court’s final judgment and remanded the case for further proceedings.

Practical Application

For family-law trial lawyers, this case should immediately be added to the toolbox for pretrial expert and damages disputes. In divorce cases involving closely held businesses, separate-property tracing, reimbursement, waste, valuation of professional practices, or fee-shifting claims, the opposing side may attempt to leverage disclosure deficiencies into a case-ending result. This opinion makes clear that exclusion and disposition are different procedural acts.

If your valuation expert, CPA, appraiser, counselor, custody evaluator, or fee expert is challenged under Rule 193.6, the court may exclude the testimony if the disclosure failure is not cured by good cause or lack of unfair surprise or prejudice. But if the court then proposes to render judgment because you now “have no evidence,” this case gives you a clean appellate point: Rule 193.6 is not a substitute for Rule 166a, trial on the merits, directed verdict, or another authorized dispositive mechanism.

The case also works in the opposite direction. If you are the movant attacking the other side’s disclosures, use the opinion as a reminder to separate procedural objectives. If you want exclusion, file the Rule 193.6 objection and build the prejudice record. If you want a merits disposition, use the correct vehicle and give the notice Texas procedure requires. In family cases, that often means filing a traditional or no-evidence summary-judgment motion on severable claims, using special exceptions to force clarification of damages or reimbursement theories, or preserving legal-sufficiency arguments for trial rather than asking the court to collapse an evidentiary ruling into judgment.

This matters particularly in these family-law settings:

• Property characterization and tracing: exclusion of a tracing expert may cripple proof, but it does not itself authorize a final property ruling without proper merits procedure.
• Business valuation disputes: exclusion of a valuation expert does not automatically entitle the other spouse to judgment on value-related claims.
• Reimbursement and economic contribution theories: defective damages-style disclosures may justify exclusion, but not an immediate take-nothing judgment unless the issue is properly presented dispositively.
• Attorney’s fees: if fee segregation, reasonableness, or lodestar support is excluded, the court may deny fee recovery, but converting that exclusion into a broader merits adjudication raises a separate procedural question.
• Conservatorship experts: exclusion of a mental-health expert or evaluator may affect the proof at trial, but it does not eliminate the litigant’s entire position by procedural fiat.
• Joined tort or contract claims in divorce: where one spouse pleads fraud, waste, conversion, or contract-based reimbursement theories, this opinion is particularly useful because those claims often involve expert or damages disclosures and tempt courts to treat exclusion as dispositive.

Checklists

Preserve the Rule 193.6 Record

• Serve expert disclosures that track Rule 195.5(a) precisely.
• Disclose the amount and method of calculating economic damages under Rule 194.2(b)(4).
• Supplement early if an expert opinion, damages model, or compensation arrangement changes.
• At the hearing, expressly argue both safe harbors under Rule 193.6: good cause and lack of unfair surprise or unfair prejudice.
• Make an offer of proof or bill of exception if expert testimony or damages evidence is excluded.
• Obtain a clear ruling on what is excluded and on what basis.

Block Conversion of Exclusion Into Judgment

• State on the record that Rule 193.6 is an evidentiary rule, not a dispositive vehicle.
• Object that no Rule 166a motion or other authorized merits procedure is before the court.
• Cite Teer v. Duddleston and the Beaumont court’s analysis distinguishing exclusion from disposition.
• If the court suggests the claim fails without the excluded evidence, request that the case proceed through the proper merits procedure.
• Object to any final judgment entered without the notice and safeguards applicable to dispositive motions.
• Reurge the due-process point in a motion for new trial or motion to modify judgment.

When You Are Seeking Exclusion

• Draft the Rule 193.6 motion as an evidentiary objection, not as a disguised summary-judgment request.
• Identify the exact disclosure defects under Rules 194, 195, and any scheduling order.
• Build a record of surprise or prejudice.
• Ask for exclusion, continuance-related relief, or other procedural remedies that Rule 193.6 supports.
• If you also want a merits ruling, file the separate dispositive motion required by the Rules.
• Avoid conflating “they cannot offer this evidence” with “they lose the case today.”

Family-Law Expert Hygiene

• For tracing experts, disclose opinions, methodology, source records reviewed, and summary calculations.
• For business valuation experts, disclose valuation date, standard of value, discounts applied, and core financial assumptions.
• For reimbursement or waste claims, disclose the damages framework and each arithmetic step in the calculation.
• For custody or mental-health experts, disclose opinions, factual bases, tests or materials reviewed, and compensation information.
• For attorney’s fees, disclose rate, hours, segregation analysis, and the method supporting reasonableness and necessity.
• Calendar supplementation deadlines backward from trial settings and mediation deadlines.

Post-Ruling Damage Control

• Request a short continuance if supplementation or redeposition can cure the prejudice issue.
• If continuance is denied, make a full record of what the witness would have said and why the defect is curable.
• Object if the court dismisses the jury or signals a merits ruling based solely on the exclusion order.
• File a prompt motion for reconsideration or new trial identifying the procedural defect.
• Frame the appellate issue as improper conversion of an evidentiary ruling into a merits judgment.
• Preserve both the exclusion complaint and the independent complaint about the unauthorized dispositive ruling.

Family Law Crossover

The procedural rule established here is narrow but powerful: Rule 193.6 authorizes exclusion of evidence for inadequate or untimely disclosure, but it does not itself authorize final adjudication on the merits. In a Texas family-law case, that issue can arise when a court excludes a spouse’s tracing expert in a separate-property dispute, a business appraiser in a valuation fight, a CPA in a reimbursement claim, or a mental-health expert in a conservatorship matter. After exclusion, the court may limit the evidence the party can present at trial, but if the court wants to dispose of the claim or defense because the remaining proof is legally insufficient, it must do so through a recognized dispositive procedure with the corresponding notice and process. The opinion therefore reinforces a critical distinction in family practice between evidentiary gatekeeping and merits adjudication.

Citation

D&M Creative Custom Builders, Inc. v. Pearce, No. 09-25-00450-CV, ___ S.W.3d ___, 2026 Tex. App. LEXIS ___ (Tex. App.—Beaumont Aug. 31, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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