Opinion
No. 05-15-01351-CV
05-09-2017
FELIX ECHENDU, Appellant v. GUSTAVO HUERTA AND HUERTA'S BODY SHOP, Appellees
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-14-05211-E
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Stoddart
Felix Echendu appeals from a take-nothing judgment following a bench trial in his suit against Gustavo Huerta and Huerta's Body Shop. Echendu argues the trial court abused its discretion by denying his oral motion for continuance, sustaining objections to his evidence on damages, allowing Huerta to dictate an answer into the record, and denying his second motion for default judgment. We affirm.
Echendu's vehicle was towed to Huerta's shop for transmission repairs in October of 2012. Echendu tendered a check for $900 to cover the cost of parts and agreed to pay an additional $300 for labor when the repairs were completed. According to his testimony, over the course of the next two years, Echendu repeatedly requested Huerta to complete the repairs and return the vehicle, but was given multiple excuses why the work was not completed. Huerta testified that after Echendu left the vehicle, Huerta was unable to obtain the parts at the price they agreed to and was unable to contact Echendu. At some point, Huerta called the phone number he had for Echendu and was told that Echendu left the country for an extended period. Huerta believed the vehicle had been abandoned and did not perform the work until he heard from Echendu.
On October 15, 2014, Echendu filed suit against Huerta for damages for the loss of use of his vehicle for the two-year period it was in Huerta's shop for transmission repairs. He asserted claims under the Deceptive Trade Practices-Consumer Protection Act ("DTPA"), TEX. BUS. & COM. CODE ANN. § 17.41-.63, and for conversion. Huerta was served with citation on October 31, 2014. Huerta then repaired the vehicle. Echendu paid the $300 for labor and retrieved the vehicle on November 13, 2014. However, Huerta did not file an answer to the lawsuit and a default judgment was rendered on February 4, 2015.
Huerta timely filed a motion for trial, which was granted on April 27, 2015. The case was then set for trial beginning September 23, 2015 and ordered to mediation. Huerta served discovery requests on Echendu on June 17, 2015, but Echendu did not respond.
Echendu filed lists of his witnesses and exhibits on September 17, 2015 and served them on Huerta's attorney. The next day, Echendu's attorney contacted Huerta's attorney and discussed the upcoming trial setting. They discussed that Huerta had not filed a written answer and that Echendu had not responded to Huerta's discovery. Echendu's attorney had not seen the discovery, but served a response later that day after receiving another copy of the requests from Huerta's attorney. Echendu's attorney later located the June discovery requests in his file.
The night before trial, September 22, 2015, Echendu filed a second motion for default judgment. The motion contains a certificate of service showing service on Huerta's attorney, but does not indicate the motion was set for hearing.
Both parties and their attorneys appeared for trial on September 23, 2015 and announced ready. At the pretrial conference, Huerta's attorney dictated a general denial into the record. Echendu did not object to the form of the answer. Rather, he orally requested a continuance based on "the answer being filed in this court today[.]" The trial court denied the request for a continuance.
At trial, Echendu attempted to offer a copy of a receipt for the seven or eight days he rented a car while his vehicle was at Huerta's shop in November 2012. Huerta objected because the document was not produced in response to his discovery requests. Echendu's attorney explained that he responded to the discovery once he learned of it shortly before trial, but was unable to get this document until his client brought it to trial. The trial court sustained the objection and excluded the document. Echendu then attempted to offer a printout from Enterprise Rent-A-Car. Huerta objected to the document because Echendu could not authenticate it and no witness from Enterprise was timely designated as a witness. The trial court sustained the objection and excluded the document. Echendu did not include either document in an offer of proof or a formal bill of exception.
Just before he rested, Echendu orally moved for a continuance to allow him to obtain a business records affidavit. The trial court denied the motion. Huerta moved for directed verdict after Echendu rested, which was granted. The trial court rendered judgment that Echendu take nothing on his claims.
The issues raised in this appeal are reviewed under an abuse of discretion standard. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (motion for continuance); In re Estate of Miller, 243 S.W.3d 831, 836-37 (Tex. App.—Dallas 2008, no pet.) (admission or exclusion of evidence); Resurgence Fin., LLC v. Taylor, 295 S.W.3d 429, 432-33 (Tex. App.—Dallas 2009, pet. denied) (motion for default judgment). 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, 241-242 (Tex. 1985).
Regarding the motions for continuance, rule 251 states that no motion for continuance will be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law. TEX. R. CIV. P. 251. Although Echendu's attorney orally requested two continuances, he never filed a written motion for continuance supported by an affidavit showing sufficient cause. See TEX. R. CIV. P. 251, 252 (specifying requirements of application for continuance). An oral motion for continuance does not satisfy the requirements of rule 251. In re A.M., 418 S.W.3d 830, 838 (Tex. App.—Dallas 2013, no pet.); Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 838 (Tex. App.—Dallas 2000, no pet.). When a party represented by counsel fails to comply with the requirements of rule 251, we presume the trial court did not abuse its discretion by denying the motion for continuance. Villegas, 711 S.W.2d at 626. Huerta did not agree to the oral motions for continuance and Echendu does not argue either continuance was required by operation of law. We conclude the trial court did not abuse its discretion by denying the motions for continuance and overrule Echendu's third issue.
Regarding the rulings excluding the documents relating to Echendu's damages, the excluded evidence is not before this Court in an offer of proof or a formal bill of exception. To challenge the 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. TEX. R. EVID. 103(a), (b); TEX. R. APP. P. 33.2; 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). Because the excluded evidence was not included in an offer of proof or a formal bill of exception, any complaint about exclusion of the evidence is not preserved for review. Estate of Miller, 243 S.W.3d at 837-38. We overrule Echendu's fourth issue.
Regarding Huerta's answer and the denial of Echendu's second motion for default judgment, we conclude the complaints are not preserved because the record does not show a ruling on the motion or a refusal to rule and an objection to the refusal to rule. See TEX. R. APP. P. 33.1(a) (as a prerequisite to making a complaint on appeal, the record must show the complaint was brought to the trial court's attention and the trial court ruled on the complaint or refused to rule and the complaining party objected to the refusal); Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 448-49 (Tex. App.—Dallas 2011, no pet.). Nor does the record show any objection to Huerta dictating his answer into the record; in fact, Echendu moved for continuance on the basis that the answer was filed the day of trial. Although pleadings in district and county courts must be in writing, TEX. R. CIV. P. 45, 46, a party waives its complaint by failing to object to the lack of a written pleading. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 73 (Tex. 2000). We conclude the complaints in issues one and two have not been preserved for appellate review. We overrule Echendu's first and second issues.
In his brief, Echendu states that before going on the record, the trial court denied the motion for default and his attorney objected to the court allowing Huerta to dictate a general denial into the record. These matters are not contained in the appellate record and "we do not consider factual assertions that appear solely in briefs and are not supported by the record." Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008) (per curiam); Wilhoite v. Sims, 401 S.W.3d 752, 762 (Tex. App.—Dallas 2013, no pet.). Further, Echendu did not file a formal bill of exception regarding these matters. See TEX. R. APP. P. 33.2 (to complain on appeal about a matter that would not otherwise appear in the record, a party must file a formal bill of exception).
We affirm the trial court's judgment. 151351F.P05
/Craig Stoddart/
CRAIG STODDART
JUSTICE
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-14-05211-E.
Opinion delivered by Justice Stoddart. Justices Francis and Fillmore participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee GUSTAVO HUERTA AND HUERTA'S BODY SHOP recover their costs of this appeal from appellant FELIX ECHENDU. Judgment entered this 9th day of May, 2017.