Opinion
No. 04-17-00044-CV
09-13-2017
HUNTERS MILL ASSOCIATION, INC., Appellant v. Andrew J. BERES and Reagan Beres, Appellees
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-06491
Honorable Michael E. Mery, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
The Honorable Antonia Arteaga presided over the bench trial and verbally pronounced the judgment. The Honorable Michael E. Mery signed the judgment.
Hunters Mill Association, Inc. appeals a take nothing judgment entered in favor of Andrew J. Beres and Reagan Beres, contending the trial court abused its discretion by excluding evidence it sought to present. We affirm the trial court's judgment.
BACKGROUND
On April 23, 2014, Hunters Mill filed the underlying lawsuit against the Bereses seeking a judgment for damages for unpaid homeowners association assessments, interest, and attorney's fees. Hunters Mill also sought a judicial foreclosure of its lien against the Bereses' home.
A bench trial was held on January 17, 2017. The first witness Hunters Mill called to testify was Samantha Thomas. The Bereses' attorney objected, noting Thomas was not identified as a person having knowledge of relevant facts in Hunters Mill's response to the Bereses' request for disclosure. Instead, Hunters Mill listed Jennifer Nutt as its managing agent. Hunters Mill's attorney responded the Bereses were on notice that it was "going to have a managing agent testify," and the management agent changed in preparation for trial. Based on this argument, Hunters Mill's attorney asserted the Bereses were not unfairly surprised or prejudiced. The Bereses' attorney replied the Bereses were surprised because Hunters Mill had only ever presented Nutt's affidavit in connection with prior summary judgments. Hunters Mill's attorney again responded that Thomas was another employee of the association's management company and was testifying to business records. The Bereses also objected to Hunters Mill's attorney testifying regarding attorney's fees because he had not been timely designated. After hearing the attorneys' arguments, the trial court sustained the objections, and Hunters Mill made an offer of proof regarding the testimony it sought to elicit from Thomas and its attorney.
The only witness who testified at trial was Reagan Beres. When she was asked to identify her signature on payment agreements, she stated it appeared to be her signature. Hunters Mill then sought to introduce the payment agreements into evidence. The Bereses' attorney objected that the agreements had not been properly authenticated, and the trial court sustained the objection.
After Reagan testified and the trial court sustained the Bereses' objections to Thomas and Hunters Mill's attorney testifying, the Bereses moved for a directed verdict which the trial court granted. A take nothing judgment was later signed noting Hunters Mill had "failed to introduce any probative evidence of any debt or attorney's fees owed by" the Bereses. Hunters Mill appeals.
EXCLUSION OF THOMAS'S TESTIMONY
In its first issue, Hunters Mill asserts the trial court abused its discretion in excluding Thomas's testimony because Hunters Mill established lack of unfair surprise or prejudice. Hunters Mill argues the Bereses anticipated it would offer sponsoring testimony to prove up its business records, noting Hunters Mill attached business records affidavits signed by Nutt with the same itemized accounting ledger to its motion for summary judgment, its amended motion for summary judgment, and its response to the Bereses' motion for summary judgment.
Under Rule 193.6 of the Texas Rules of Civil Procedure, "witnesses [who] are not timely identified are inadmissible as evidence." Fort Brown Villas III Condo. Ass'n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009); see also TEX. R. CIV. P. 193.6(a). "A party who fails to timely [identify a witness] has the burden of establishing good cause or a lack of unfair surprise or prejudice before the trial court may admit the evidence." Fort Brown Villas III Condo. Ass'n, 285 S.W.3d at 881. The trial court has discretion in determining whether a party has met this burden, and the record must support the trial court's finding. Aluminum Co. of Am. v. Bullock, 870 S.W.3d 2, 3 (Tex. 1994); In re E.A.G., 373 S.W.3d 129, 145 (Tex. App.—San Antonio 2012, pet. denied); Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 581 (Tex. App.—Austin 2002, no pet.). We may not substitute our judgment for that of the trial court, and a trial court only abuses its discretion if it could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
In support of its argument that the trial court abused its discretion in failing to find lack of unfair surprise or prejudice, Hunters Mill primarily relies on Fox v. Bank of Am., N.A., No. 14-15-00955-CV, 2017 WL 626628 (Tex. App.—Houston [14th Dist.] Feb. 14, 2017, no pet.). In Fox, however, the Houston court was reviewing the opposite issue to the one presented in the instant case. Instead of reviewing whether the trial court abused its discretion in excluding evidence, the Houston court was reviewing whether the trial court abused its discretion in admitting business records into evidence that were supported by a business records affidavit signed by Bank of America's custodian of records, Troy Pearson. Id. at *1.
In Fox, Bank of America sued James Fox for the balance due on a credit card account. Id. Bank of America attached a copy of Fox's credit card statement to its petition and later filed the business records affidavit signed by Pearson. Id. At a bench trial, when Bank of America offered its business records as evidence, Fox objected because Bank of America had failed to identify Pearson as a witness until fourteen days before trial. Id. at *1.
The Houston court noted Bank of America did not call Pearson to testify at trial but only used the affidavit Pearson signed to support the admission of its account record. Id. at *2. The Houston court upheld the trial court's finding that Fox was not unfairly surprised or prejudiced because Bank of America provided Fox with the same credit card statement attached to Pearson's affidavit when he was served with the petition. Id.
Unlike Pearson's affidavit in Fox and the business records affidavits signed by Nutt, the testimony Hunters Mill sought to elicit from Thomas was not limited to testimony necessary to support the admission of its business records. Instead, the offer of proof established Thomas would testify in detail regarding the entries made in the records, including entries for interest, administrative fees, title search fees, and collection fees. In addition, Thomas would testify regarding the notices sent to the Bereses which were in dispute. Thomas would also testify about a 2008 default judgment Hunters Mill obtained against the Bereses. Thomas would further explain the entries in the business records, including an entry showing a zero balance, did not mean the Bereses had paid the amount due in full because the records did not include the attorney's fees the Bereses also owed. Finally, Thomas would testify about payment agreements made with the Bereses. Having reviewed the testimony Hunters Mill sought to elicit from Thomas, we cannot conclude the trial court could only reasonably have reached the decision that Hunters Mill met its burden to show a lack of unfair surprise or prejudice. Therefore, we hold the trial court did not abuse its discretion in excluding Thomas's testimony.
Although Hunters Mill argues the Bereses knew it would call a records custodian, Thomas's testimony was not limited to sponsoring the admission of the business records. Furthermore, the fact that a party needs a particular witness to establish its cause of action does not establish the other party will not be unfairly surprised by the late designation of the witness. See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin 2002, pet. denied). Stated differently, the fact that Hunters Mill needed Thomas's testimony to support its claim does not excuse it from complying with the rules of civil procedure. See Gibbs v. Bureaus Inv. Group Portfolio No. 14, LLC, 441 S.W.3d 764, 768 (Tex. App.—El Paso 2014, no pet.). The Bereses were entitled to know Thomas's identity "to conduct an effective investigation and cross-examination for the purpose of discovering possible impeaching facts." Id. Hunters Mill's first issue is overruled.
EXCLUSION OF ATTORNEY'S TESTIMONY
In its second issue, Hunters Mill asserts the trial court abused its discretion in excluding the testimony of its attorney regarding its attorney's fees. Because we have upheld the exclusion of Thomas's testimony, Hunters Mill could not establish it was a prevailing party entitled to recover attorney's fees. Therefore, it cannot establish it was harmed by the exclusion of its attorney's testimony. See TEX. R. APP. P. 44.1; see also TEX. PROP. CODE ANN. § 5.006(a) (West 2014) (allowing prevailing party in action based on breach of restrictive covenant to recover attorney's fees); TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015) (providing attorney's fees may be awarded for "valid" claim for breach of contract). Hunters Mill's second issue is overruled.
In its reply brief, Hunters Mill argues article 18 of the Declaration of Protective Covenants authorizes the recovery of attorney's fees based on its assessment lien. Article 18 states, however, that the lien secures payment "of the maintenance charges and all past due interest which may accrue thereon, together with all reasonable expenses, costs and attorney's fees which may be incurred in connection with the collection thereof ." (emphasis added). Therefore, absent evidence that Hunters Mill was entitled to collect or recover maintenance charges and past due interest, no attorney's fees could be "incurred in connection with the collection" of such charges and interest.
EXCLUSION OF PAYMENT AGREEMENTS
In its third issue, Hunters Mill contends the trial court erred in excluding the payment agreements it made with the Bereses. "An appellate court does not reach the question of whether evidence was erroneously excluded unless the complaint has first been preserved for review." In re Estate of Miller, 243 S.W.3d 831, 837 (Tex. App.—Dallas 2008, no pet.). "To challenge exclusion of evidence by the trial court on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception." Id.; see also In re M.G.N., 491 S.W.3d 386, 399 (Tex. App.—San Antonio 2016, pet. denied) (noting failure to make an offer of proof regarding excluded evidence waives any complaint on appeal). In this case, Hunters Mill did not make an offer of proof with regard to the excluded payment agreements. Therefore, Hunters Mill failed to preserve this complaint for our review. Hunters Mill's third issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Rebeca C. Martinez, Justice