Wednesday, November 8, 2017

Exclusion of evidence at trial for failure to identify witness in discovery

Hunter Mill Assoc. Inc. v Beres, No. 04-17-00044-CV  (Tex.App. - San Antonio, Sep 13, 2017) 
One of the ways to defeat a debt collection suit is to have the Plaintiff's evidence excluded. One rule that provides a basis for such exclusion is the automatic exclusion rule that bars a party from offering a witness or evidence that was not timely disclosed to put the opponent on notice and allow him or her to prepare a defense, or conduct further inquiry or take the witness's deposition.  

A party who fails to make, amend, or supplement a discovery response in a timely manner may not offer the testimony of a witness who was not timely disclosed, unless the court either finds there was good cause for the failure or finds that failure will not unfairly prejudice the opposing party. TEX.R. CIV. P. 193.6(a).

The exclusion rule only comes into play, of course, when the relevant witness or material had been requested in discovery, and that typically only occurs in cases in which the defendant has competent legal representation. Nor does the invocation of automatic exclusion of undisclosed witnesses under rule 193.6(a) always work. There is, after all, an exception to get around it when there is no unfair surprise or prejudice to the party making the objection. 

In a recent HOA assessment case, the San Antonio court of appeals affirmed a take-nothing judgment entered after exclusion of the association's witness because the witness had not been disclosed and was to do more than merely authenticate business records. In doing so the appellate court distinguished a case from a Houston court of appeals in which the undisclosed witness's role was much more limited and consisted merely of laying a predicate for admission of business records that had previously been disclosed. Under those circumstances, the trial court found no prejudice to the Defendant, and the appellate court found no error in the trial court's admission of the challenged evidence. In the San Antonio case, the circumstance were different, and the enforcement of the exclusion rule was upheld as proper. Because the association could not prove its principal case without its excluded witness, the exclusion of its attorney's testimony on fees was at best harmless error because the association needed to prevail in order to recover attorney's fees. 

Andrew J. BERES and Reagan Beres, Appellees.

No. 04-17-00044-CV 
Court of Appeals of Texas, Fourth District, San Antonio.
Delivered and Filed: September 13, 2017.

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


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


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.


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. *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.


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.[2] 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 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.


The judgment of the trial court is affirmed.

[1] The Honorable Antonia Arteaga presided over the bench trial and verbally pronounced the judgment. The Honorable Michael E. Mery signed the judgment.

[2] 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.


 Gibbs v. Bureaus Inv. Grp. Portfoloi No. 14, LLC, 441 S.W.3d 764, 768-69 (Tex. App.-El Paso 2014, no pet.) (party entitled to disclosures to enable it to conduct an effective investigation for the purpose of discovering possibly impeaching facts).

Note: The First Court of Appeals (Houston) approvingly cited Gibbs v Bureaus in 2016 in a parental rights termination case, although it resolved the appeal against the parent. See In re MFD, No. No. 01-16-00295-CV (Tex. App. - Houston Dec. 8, 2016).
Preliminarily, we reject the Department's argument that the general analysis applicable to discovery sanctions applies when a violation of Rule 193.6 occurs. We have previously held that the exclusion of evidence provided for under this rule "is mandatory, and the only permissible sanction for a violation . . . unless the trial court finds good cause or a lack of surprise or prejudice." Dyer v. Cotton, 333 S.W.3d 703, 717 (Tex. App.-Houston [1st Dist.] 2010, no pet.)see also Gibbs v. Bureaus Inv. Grp. Portfolio No. 14, LLC, 441 S.W.3d 764, 766 (Tex. App.-El Paso 2014, no pet.) ("The sanction for failure to comply with this rule is the `automatic and mandatory' exclusion from trial of the omitted evidence.").

441 S.W.3d 764 (2014)

Dianna L. GIBBS d/b/a Wells Grey Group, Appellant,

No. 08-12-00330-CV.
Court of Appeals of Texas, El Paso.
July 22, 2014.
Krista Balekian Hayes, Dallas, for Appellee.

Julia F. Pendery, Dallas, for Appellant.




In this breach-of-contract action tried to the bench, Dianna Gibbs d/b/a Wells Grey 765Group (hereinafter, "Gibbs") appeals the trial court's judgment in favor of Bureaus Investment Group Portfolio No. 15, LLC (hereinafter, "Bureaus").[1] Gibbs raises four issues, the first of which is dispositive. In her first issue, Gibbs argues that the trial court erred in permitting a foundational witness to testify despite Bureaus' failure to disclose him as fact witness during pretrial discovery and that this error probably caused the rendition of an improper judgment. 

Because we agree, we reverse and render.


In 2011, Bureaus sued Gibbs to recover the unpaid balance on a business credit card account. The account was originally issued to Gibbs by Advanta Bank Corp. in 2002 and later acquired by Bureaus by assignment.[2] Bureaus brought causes of action for breach of contract, suit on debt, and unjust enrichment.

Gibbs answered, contending, in part, that Bureaus lacked standing to sue her. Bureaus responded by filing an affidavit with supporting business records. Gibbs objected to both the affidavit and the attached business records primarily on the basis that they were inadmissible hearsay. She also re-urged her argument that Bureaus lacked standing. The lawsuit proceeded to trial in April 2012. At trial, Bureaus called Charles S. Verhines as a witness. Verhines identified himself as the "legal lead for the Bureaus, Incorporated." Gibbs objected to Verhines testifying at trial because he had not been identified as a fact witness in response to her requests for disclosure. The following exchange then ensued:
PLAINTIFF'S COUNSEL: Actually, we listed Bureaus Investment Group Portfolio 15, an agent. She didn't ask us to designate. She just asked us for potential witnesses. We are bringing a party—a designated witness on behalf of that party.
DEFENDANT'S COUNSEL: The rules require that the name and address of the person be disclosed in the persons with knowledge of relevant facts. I think you—that's the whole purpose of the request of the disclosure, so you know who the—the witnesses—potential witnesses could be. Just putting a corporate name is not really that much information.
PLAINTIFF'S COUNSEL: Well, it's two-fold, Judge, we [sic] are entitled to allege a party through Opposing Counsel—excuse me, through the Counsel's name; however, the purpose of the rule is to give her knowledge and to ask us additional information about what this person's going to testify to, which they haven't.
No. 2, she's now alleged standing. So, on the rebuttal side, I have a right to provide this witness to prove standing to the Court.
The trial court overruled Gibbs's objection and permitted Verhines to testify.
Through Verhines's testimony, Bureaus introduced into evidence its business records and those of its assignors to establish Gibbs's liability. As admitted, these records 766*766included the bills of sale, the signed credit card application, the terms and conditions governing the credit card account, and approximately a dozen monthly account statements. The trial court rendered judgment for Bureaus in the amount of $44,281.21, "including pre-judgment interest," plus post-judgment interest, and reasonable attorney's fees. Gibbs timely requested findings of fact and conclusions of law, and the trial court issued them. Gibbs then requested additional findings and conclusions, but the trial court did not issue any.[3]


In her first issue, Gibbs asserts that the trial court erred in overruling her objection to Verhines's testimony and admitting it into evidence despite Bureaus's failure to disclose him as a fact witness before trial and that, without his testimony, the trial court's judgment cannot stand. We agree.

Applicable Law

A party may obtain discovery of the name, address, and telephone number of persons with knowledge of relevant facts, and a brief statement of each identified person's connection with the case. TEX.R.CIV.P. 192.3(c); TEX.R.CIV.P. 194.2(e). When responding to written discovery, a party must make a complete response, and must amend or supplement the response if it later learns that the response is no longer complete and correct. TEX.R.CIV.P. 193.1, TEX.R.CIV.P. 193.5(a). A party who fails to disclose information concerning a nonparty witness in response to a discovery request may not offer the witness's testimony unless the court finds that there was good cause for the failure to timely make, amend, or supplement the discovery response or the failure to make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. TEX.R.CIV.P. 193.6(a). The sanction for failure to comply with this rule is the "automatic and mandatory" exclusion from trial of the omitted evidence. Oscar Luis Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex.App.-Dallas 2006, no pet.).

To obtain reversal of a judgment based upon an error in the trial court, the appellant must show the error probably: (1) caused rendition of an improper judgment in the case; or (2) prevented her from properly presenting the case to the appellate court. TEX.R.APP.P. 44.1(a); In re D.I.B., 988 S.W.2d 753, 756 n. 10 (Tex. 1999)Tex. Dep't of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex.1991). The complaining party must show the whole case turned on the evidence at issue. City of Brownsville v. Alvarado,897 S.W.2d 750, 753-54 (Tex.1995). We examine the entire record in making this determination. Jamail v. Anchor Mortgage Servs., Inc., 809 S.W.2d 221, 223 (Tex.1991).


1. Error

The trial court erred in overruling Gibbs's objection to Verhines's testimony and admitting it into evidence.

a. Automatic Exclusion Under Rule 193.6

Bureaus failed to disclose Verhines as a fact witness during pretrial discovery in contravention of Rule 193.6(a). The parties do not dispute that Gibbs sought discovery of persons with knowledge of relevant 767*767 facts.[4] See TEX.R.CIV.P. 192.3(c); TEX.R.CIV.P. 194.2(e).

As evidenced by the discussion at trial, Bureaus identified itself as a fact witness in its responses to Gibbs's discovery requests but did not disclose Verhines's name in those responses or supplemental responses.[5] Nor did Bureaus disclose Verhines's name on the witness list it submitted to the trial court approximately three weeks before trial.[6] See TEX. R.CIV.P. 192.3(d). Consequently, Bureaus' failure to disclose Verhines as a fact witness during pretrial discovery, absent a showing of good cause or lack of surprise or prejudice, triggers the automatic exclusion sanctions of Rule 193.6.

Bureaus did not dispute at trial, nor does it do so now on appeal, that it failed to disclose Verhines as a fact witness during pretrial discovery. Nevertheless, Bureaus asserts that Gibbs was "neither unfairly surprised nor unfairly prejudiced by the trial judge's decision to allow ... Verhines to testify, which was also supported by good cause." We disagree.

b. Exceptions to Automatic Exclusion Under Rule 193.6

As the party offering the undisclosed witness, Bureaus bore the burden to establish good cause or lack of unfair surprise or prejudice. TEX.R.CIV.P. 193.6(b). Further, the record must support a finding of good cause or lack of unfair surprise or prejudice. Id. Here, the record demonstrates that the trial court overruled Gibbs's objection to Verhines's testimony on two possible bases—that Verhines: (1) was a designated witness on behalf of a party; and/or (2) a rebuttal witness. In the circumstances of this case, these bases are not sufficient for Bureaus to satisfy its burden of showing good cause or lack of unfair surprise or prejudice.

(1) Unfair Surprise

Bureaus argues Gibbs cannot claim unfair surprise because she should have anticipated that a designated representative would testify on its behalf, given that it is a named party incapable of testifying and that it had previously designated a potential witness to testify to the details of the credit card account. In support of this argument, Bureaus cites Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380 (Tex.App.-Dallas 2003, pet. denied)Bellino is distinguishable.

In Bellino, the appellant complained that the trial court erred by permitting the Commission for Lawyer Discipline's witnesses to testify over objection when they were disclosed only two to three weeks before trial. Bellino, 124 S.W.3d at 383-84. The court disagreed, concluding that the trial court did not err because the 768*768 record supported a finding of lack of unfair surprise. Id. at 384. The court reached this conclusion for two reasons. First, most of the witnesses were the complainants on the grievances in issue. Id. And second, the appellant enjoyed due process rights, including the opportunity to respond to the complaints and the opportunity for him and the complainants to appear at a hearing before an investigatory panel. Id. Here, in contrast, Verhines was never disclosed as a fact witness before trial and Gibbs could not have been aware of the substance of Verhines's testimony long before trial because there was no prior proceeding against her in which he testified.

Bureaus also argues Gibbs bore the responsibility to "inquire about or request additional information as to who exactly the designated witness for Bureaus would be or to attempt to seek additional information once the witness was designated." Bureaus argument is unpersuasive for two reasons. First, Bureaus is not excused from complying with the rules of civil procedure. Pursuant to Rules 192.3(c) and 194.2(e), Bureaus had the affirmative obligation to provide not only Verhines's name, address, and telephone number, but also his connection to the case. Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 923 (Tex.App.-Fort Worth 2001, pet. denied)see TEX.R.CIV.P. 192.3(c), TEX.R.CIV.P. 194.2(e). Bureaus wholly failed to provide this information, even though it was obviously available because Bureaus called Verhines to testify at trial. Beam, 56 S.W.3d at 923. Second, and more importantly, Bureaus's contention eviscerates Rule 193.6(a)'s "salutary effect of promoting full and complete discovery" and instead invites trial by ambush, the very peril the promulgation of the rules of discovery sought to avert. La Madeleine, 200 S.W.3d at 860, 863. A party in Gibbs's position "is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory." Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (Tex.1992).

(2) Unfair Prejudice

Bureaus contends Gibbs cannot claim unfair prejudice because she "never explicitly stated anything about how any alleged error on ... [its] ... part ... prejudiced [her] trial strategy." But Gibbs was under no such obligation. Bureaus's failure to disclose Verhines as a fact witness during pretrial discovery triggered the automatic exclusion sanctions of Rule 193.6. As mentioned above, Bureaus—not Gibbs—bore the burden to show that Gibbs was not unfairly prejudiced. To this end, Bureaus asserts Gibbs was not unfairly prejudiced because she knew a witness would be testifying on its behalf and she had previously received the documents to which Verhines testified. But as mentioned above, Bureaus is not excused from complying with the rules of civil procedure. If Bureaus intended to call Verhines as a witness, it was obligated to identify him as one in response to Gibbs's discovery requests. Further, it is irrelevant that Gibbs had previously received the documents to which Verhines testified. As a business entity, Bureaus was incapable of testifying and therefore had to designate an individual to testify on its behalf. Because this witness must be competent and possess personal knowledge of the subject matter of his testimony, Gibbs was entitled to know his identity to conduct an effective investigation and cross-examination for the purpose of discovering possibly impeaching facts. See Smith v. State of Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968) ("Yet when the credibility of a witness is in issue, the very starting point in `exposing falsehood and bringing out the 769*769 truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself").

(3) Good Cause

Bureaus argues "in this particular situation, good cause is not even required" because "Verhines is an agent of Bureaus, the named party in this lawsuit." [Emphasis in orig.]. The basis for this argument is the same one on which Bureaus relied—and we resolved against it—in asserting that Gibbs was not unfairly surprised by its failure to disclose Verhines as a fact witness during pretrial discovery. Thus, for the same reasons articulated above, Bureaus's good-cause argument lacks substance.

In the alternative, Bureaus argues good cause existed because Verhines served as a necessary rebuttal witness to Gibbs's allegation that it lacked standing to sue her. In so arguing, Bureaus asserts Gibbs raised her standing argument for the first time at trial. This assertion is belied by the record. Gibbs raised standing as an issue well before trial, both in her answer and in her objections to Bureaus's business records affidavit and the attached records. Furthermore, we note—as does Gibbs in her reply brief—that Verhines was not a rebuttal witness because he was the first witness to take the stand and his testimony did not contradict another witness's.

Bureaus also argues "there are many valid reasons that the trial judge took into consideration when reaching his decision that good cause did in fact exist." Bureaus, however, fails to identify these reasons.

2. Harm

The trial court's error probably caused the rendition of an improper judgment. Bureaus argues that, if the trial court erred in allowing Verhines to testify, the error was harmless because "Verhines's testimony did not form the entire body of [its] evidence." More specifically, Bureaus argues that it would have prevailed without Verhines's testimony because the trial court would have admitted into evidence the business records "evidencing ... [Gibbs's] breach ... and [Bureaus] ownership of the [account]" "with or without Verhines' testimony." In support of this argument, Bureaus cites Simien v. Unifund CCR Partners, 321 S.W.3d 235 (Tex. App.-Houston [1st Dist.] 2010, no pet.)(op. on reh'g). But Bureaus's reliance on Simien is misplaced.

Simien, like this case, involved an attempt to collect on unpaid credit card debt bought from the original credit card issuer. 321 S.W.3d at 239. The issue in Simien was whether the affidavit offered by the debt purchaser's representative was admissible to prove up a third-party business's records as the debt purchaser's business records when the representative lacked personal knowledge of the third-party business's recordkeeping practices or of events or conditions memorialized in the third-party business's records. Simien, 321 S.W.3d at 240-41, 244. The court concluded the affidavit was admissible because it met certain criteria, most notably because the representative conclusively established the trustworthiness of the third-party records. Id. at 244-45. Significantly, the defendant in Simien did not dispute that she had breached the credit card agreement, nor did she challenge the authenticity or enforceability of the credit card agreement. 239, 244. Rather, the defendant contested the amount owed 770and the appropriate interest rate. Id. at 239. In other words, the defendant in Simien did not challenge the reliability and trustworthiness of the third-party's business records sought to be introduced. Id. at 244.

Here, in contrast, Gibbs directly challenged the reliability and trustworthiness of the third-party business records in issue. She alleged that the payment information was incorrect, in part because it was impossible to determine from the underlying credit card statements what, if anything, she charged on the card. Furthermore, Gibbs's husband testified that the signature on the credit card application was not hers. Thus, the question the trial court would have faced here is whether, in the absence of Verhines's supporting testimony, the business records affidavit conclusively established the trustworthiness of the third-party business's records in the face of other indicators casting doubt on their trustworthiness. The trial court in Simien did not face that issue. Accordingly, Simiendoes not mandate the result urged by Bureaus. To the contrary, the trial court here could have determined that the business records affidavit proffered by Bureaus did not conclusively establish the trustworthiness of the third-party business's records.

The fact is that the third-party business's records were admitted into evidence through Verhines's sponsoring testimony, not through a business records affidavit. Without Verhines's testimony sponsoring these business records, the trial court would not have had any evidence upon which to render judgment in favor of Bureaus. Thus, contrary to Bureaus's assertion, the whole case turns on Verhines's testimony, and the trial court's judgment likely would not have remained the same without Verhines's testimony. Consequently, based on the record in this case, we cannot conclude that the admission of Verhines's testimony was harmless.

Gibbs's first issue is sustained. Our resolution of Gibbs's first issue obviates the need to consider her remaining issues. See TEX.R.APP.P. 47.1.


The trial court's judgment is reversed, and judgment is rendered that Bureaus take nothing against Gibbs.

[1] Bureaus Investment Group Portfolio No. 14, LLC (hereinafter, "Bureaus No. 14") is identified as the plaintiff in the caption of the trial court's judgment—and hence in the caption in this opinion—but Bureaus is the actual plaintiff and the prevailing party. Bureaus No. 14 and Bureaus are separate entities but are involved in the transaction at the heart of this appeal.
[2] Gibbs's credit card account was bought initially by Bureaus No. 14 in December 2007. Bureaus No. 14 then sold the account to Bureaus in January 2011.
[3] Gibbs's does not complain on appeal of the trial court's failure to issue these additional findings and conclusions.
[4] Gibbs's discovery requests are not in the appellate record, and Gibbs did not designate them as part of the record on appeal. However, it is apparent from the reporter's record that Gibbs served discovery upon Bureaus and that Bureaus responded. Significantly, Bureaus has not complained of the omission of Gibbs's discovery requests from the appellate record nor challenged the factual assertion in Gibbs's brief that "Verhines had never been disclosed to Gibbs, despite her having sent the appropriate discovery request...." Because Bureaus has not contradicted this assertion, we accept it as true. TEX.R.APP.P. 38.1(g) ("In a civil case, the court will accept as true the facts stated unless another party contradicts them.").
[5] Bureaus attached its response to Gibbs's discovery request as Appendix 1 to its appellate brief. Although that response is not part of the appellate record and will not be considered as such, it confirms Verhines was not disclosed as a fact witness.
[6] In its witness list, Bureaus identified Jorge L. Diaz, Jr. as the person who would testify to the "details of the account in his role as legal collection manager at The Bureaus, Inc."

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