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Sharnese v. Lopez

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2017


         On Appeal from the County Court at Law No. 3 Collin County, Texas Trial Court Cause No. 003-00174-2014

          Before Justices Fillmore, Whitehill, and Boatright.



         NylondaJazz Sharnese appeals a take-nothing judgment following a bench trial in her suit against Jose Lopez, Miguel Angel Silva, and Rebecca Rodriguez. Sharnese challenges the trial court's exclusion of evidence she tried to present at trial. She also contends the trial court erred by failing to file findings of fact and conclusions of law, granting judgment in favor of appellees, and demonstrating prejudice and bias against Sharnese during the trial and a post-trial hearing on her motion to correct the reporter's record. We affirm the trial court's judgment.


         Sharnese contacted Marcel Counts, an apartment locator, about a condominium listed for rent. When Sharnese viewed the condominium, she asked whether certain repairs would be made. Counts contacted Jose Lopez, the condominium owner's representative, who indicated that repairs would be made before Sharnese moved in. Sharnese filled out an application and paid an application fee. After her application was approved, Sharnese signed the lease agreement, paid a deposit, and made a rental payment. She moved into the condominium later that day, even though repairs had not been completed and the owner, Miguel Silva, had not signed the lease.

         A day or two later, Silva came by the condominium but did not complete any of the repairs Sharnese requested. Sharnese called the City of Plano Property Standards Department to complain about the condition of the condominium. The City sent an inspector to evaluate the condominium; Silva was cited for deficiencies found by the inspector. Shortly thereafter, Lopez called Sharnese to tell her that Silva did not want to lease to her and she had thirty days to move out. Lopez sent Counts a package containing a written thirty-day notice for Sharnese to vacate the premises and a check refunding amounts paid by Sharnese for the deposit and rent. Sharnese did not move out. Lopez then filed a forcible entry and detainer suit against Sharnese; judgment was granted in favor of the owner. Sharnese appealed, but ultimately moved out of the condominium.

         Sharnese filed a separate lawsuit against appellees.[1] In her first amended complaint, the live pleading at the time of trial, Sharnese alleged causes of action for breach of contract, retaliation, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, breach of covenant of quiet enjoyment, and harassment against all appellees, causes of action for wrongful eviction, violation of city ordinances, violation of Texas Property Code Section 92.259, unjust enrichment, unfair business practices, fraud and deceit, and promissory estoppel against appellees Silva and Lopez, and a cause of action for breach of fiduciary duty against appellee Lopez.[2] The trial court conducted a bench trial at which Sharnese appeared pro se. After Sharnese rested her case, defense counsel asked for judgment in favor of the appellees, arguing that Sharnese had presented no evidence to prove her case. The trial judge granted judgment in favor of the appellees. The trial court did not file findings of fact and conclusions of law despite Sharnese's timely request and notice of past due findings. This appeal followed.


         A. Evidentiary Issues

         In her first three issues, Sharnese complains that the trial court erred by refusing to admit the following evidence: (1) her exhibits pertaining to damages, (2) a certified copy of the City of Plano Property Standard Department deficiencies report, and (3) a voice recording of Silva telling Sharnese that he was evicting her because she requested repairs. We review a trial court's decision to exclude evidence under an abuse-of-discretion standard. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). The trial court's evidentiary ruling will be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

         To challenge the trial court's erroneous exclusion of evidence, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception. Tex. R. Evid. 103(a)(2); Tex.R.App.P. 33.2; see also Langley v. Comm'n for Lawyer Discipline, 191 S.W.3d 913, 915 (Tex. App.-Dallas 2006, no pet.) (concluding appellant failed to preserve error when no offer of proof or bill of exception was made). However, 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 preserve error on appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record. Tex.R.App.P. 33.1(a).

         Sharnese argues that documents she filed prior to trial, titled "Damages" and "Notice of Preservation of Right to Seek Punitive Damages, " constituted evidence of her damages. However, pleadings are not evidence unless offered and admitted as evidence by the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). She also argues that her evidence of damages was submitted on the day of trial, when Sharnese attempted to have all of her exhibits pre-admitted. Defense counsel objected, arguing that Sharnese still needed to lay the predicate foundation for her exhibits. The trial court deferred ruling on the admissibility of the exhibits and instructed Sharnese to offer the exhibits as needed, but Sharnese made no further attempt to introduce the document titled "Damages, " or any other exhibits pertaining to her damages, until after she had rested. Because Sharnese did not get a ruling from the trial court on the admissibility of her damages exhibits when she first attempted to offer them, and then failed to offer the exhibits again during the evidentiary portion of the trial, she failed to preserve this issue for our review. Tex.R.App.P. 33.1(a); Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. App.-Houston [14th Dist.] 2004, no pet.). We overrule Sharnese's first issue.

         Sharnese also tried to introduce a certified copy of a letter from the City of Plano Property Standard Department into evidence. Defense counsel raised a hearsay objection, arguing that Sharnese had not laid a proper predicate. The trial court sustained the objection. In response, Sharnese argued that the letter was not hearsay because it was a certified copy. She made no offer of proof or bill of exception with respect to the excluded ...

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