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Hunters Mill Association, Inc. v. Beres

Court of Appeals of Texas, Fourth District, San Antonio

September 13, 2017

HUNTERS MILL ASSOCIATION, INC., Appellant
v.
Andrew J. BERES and Reagan Beres, Appellees

         From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-06491 Honorable Michael E. Mery, Judge Presiding[1]

          Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          REBECA C. MARTINEZ, JUSTICE

         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 ...


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