Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 3 Collin County,
Texas Trial Court Cause No. 003-00174-2014
Justices Fillmore, Whitehill, and Boatright.
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.
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
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.
filed a separate lawsuit against appellees. 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. 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.
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).
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).
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
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 ...