Court of Appeals of Texas, Fourth District, San Antonio
the 166th Judicial District Court, Bexar County, Texas Trial
Court No. 2014-CI-06491 Honorable Michael E. Mery, Judge
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez,
Justice Irene Rios, Justice
C. MARTINEZ, JUSTICE
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
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.
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
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.
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
of Thomas's Testimony
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.
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
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.
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 ...