Ignacio Olvera v. Fidelity and Deposit Company of Maryland

Affirmed and Memorandum Opinion filed August 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00528-CV

IGNACIO OLVERA, Appellant

V.

FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 16-DCV-237937

MEMORANDUM OPINION

Appellant Ignacio Olvera appeals a judgment in favor of Appellee Fidelity
and Deposit Company of Maryland, arguing the trial court committed reversible
error by allowing Fidelity’s witness to testify from documents which were never
produced to him.

BACKGROUND

In December 2016, Olvera sued D.R. Horton Texas, Ltd. Alleging he had not
been paid for his construction work on D.R. Horton’s property and was entitled to
foreclose on a perfected mechanic’s and materialman’s lien, Olvera asserted
numerous causes of action.1 D.R. Horton filed an answer, generally denying
Olvera’s allegations and asserting a bond to indemnify against the lien that had been
issued by Fidelity. Olvera filed a supplemental petition, joining Fidelity as a
defendant and alleging that he (1) had filed and perfected a mechanic’s and
materialman’s lien to secure his statutory right to be paid for the materials he
supplied; (2) was entitled to foreclose the lien on the property pursuant to chapter 53
of the Texas Property Code; and (3) had a claim against the bond.

Fidelity filed an answer, generally denying Olvera’s allegations and asserting
that (1) D.R. Horton had filed a bond to indemnify against the lien in December
2016; (2) the bond amount is twice the claimed lien in accordance with the Texas
Property Code; and (3) Olvera’s lien, therefore, has been canceled and Olvera is
“barred from attempting to foreclose it.” In February 2017, D.R. Horton filed a
motion for summary judgment on all of Olvera’s claims, and the trial court granted
the motion in August 2017.

In April 2023, the case proceeded to a bench trial. At trial, Olvera testified he
was owed $6,300 for construction work he had done on three houses in May 2016.
On cross-examination, Olvera admitted that D.R. Horton did not hire him to work
on the three houses but that Renegado Construction hired him as a sub-subcontractor
and that he expected Renegado Construction to pay him and not D.R. Horton. Olvera
also admitted not having “any texts, emails, purchase orders or any documents that
show that [he] did the work or even when [he] did the work.” Olvera testified that

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In the same petition, two other plaintiffs alleged claims against several defendants.
However, the two plaintiffs filed a motion to nonsuit all their claims against these defendants; the
trial court granted the motion and dismissed the claims. These plaintiffs and defendants are not
part of this appeal.

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the only thing he knew was that “the work was completed in the month of May.”

After Olvera rested his case, Fidelity called D.R. Horton’s construction
manager as a witness to testify about the dates work on the houses was completed
and paid for. When Fidelity attempted to show the manager certain
documents/invoices to refresh his recollection, Olvera objected because the
documents had not been produced and Fidelity “ha[d]n’t seen them.” Olvera also
objected claiming a general denial did not allow Fidelity to contest perfection and
validity of the lien under chapter 53 of the Texas Property Code, but that Fidelity
was required to plead an affirmative defense.

Discussion ensued and the parties focused much of their arguments on
whether Fidelity could contest perfection of the lien. The trial court offered Olvera
a continuance several times, but Olvera declined. Fidelity also offered to continue
the case for as much time as Olvera needed. After confirming he did not want a
continuance but wanted to move forward with trial, Olvera nonetheless objected
again and also moved for a mistrial claiming Fidelity’s evidence “constitutes
surprise and prejudice” because it was not disclosed. In response, Fidelity stated
that “it’s been the defendant’s position from day one that the payment was made in
April. The documents showing the payments in April that were produced years ago,
the disclosures have been made.” Fidelity again offered to continue the case and
stated, “I don’t want him to walk out of here feeling surprised.”

The trial court responded, “I’ve made the option available for a continuance
and the plaintiff has opted to go forward, so we will honor that request to go forward
by the plaintiff and we will proceed.” The court asked Fidelity’s witness to return
to the stand and Fidelity proceeded with direct examination. After hearing the
evidence and arguments, the trial court concluded that Olvera did not prove his case.
The court signed a final judgment on May 2, 2023, ordering Olvera to take nothing

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from Fidelity. Olvera filed a request for findings of fact and conclusions of law.
The trial court did not issue findings of fact and conclusions of law, and Olvera did
not file a notice of past due findings and conclusions. Olvera filed a timely notice
of appeal.

ANALYSIS

In two issues, Olvera argues the trial court committed reversible error by
allowing Fidelity’s witness to testify from documents which were never produced to
Olvera without determining whether Fidelity established good cause for its failure
to disclose evidence or established a lack of surprise or prejudice to Olvera. Citing
Texas Rule of Civil Procedure 193.6(a) and (b), Olvera claims that “[a]lthough it
was undisputed that Appellee’s documents were untimely disclosed, the trial court
failed to conduct the analysis required for late-filed evidence under Rule 193.6” and
instead suggested a continuance. According to Olvera, once he asked the trial court
to exclude Fidelity’s undisclosed evidence, the burden shifted to Fidelity to establish
good cause for its failure to disclose or to show a lack of surprise or prejudice.

We review a trial court’s evidentiary ruling for an abuse of discretion. Sw.
Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016); Bay Area
Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam).
A trial court abuses its discretion when it acts without regard for guiding rules or
principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). We
will uphold a trial court’s evidentiary ruling if any legitimate ground supports the
ruling, even if the ground was not raised in the trial court. Hooper v. Chittaluru, 222
S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). And we will
not reverse an erroneous evidentiary ruling unless the error probably caused the
rendition of an improper judgment or prevented a proper presentation of the appeal.
See Tex. R. App. P. 44.1(a); Bay Area Healthcare Grp., Ltd., 239 S.W.3d at 234;

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Bowden v. Methodist Hosp., No. 14-23-00130-CV, 2024 WL 2759397, at *2 (Tex.
App.—Houston [14th Dist.] May 30, 2024, no pet. h.) (mem. op.).

Generally, a party who fails to timely amend or supplement a discovery
response requesting evidence or the identity of witnesses may not introduce the
evidence or offer the testimony of the witness at trial. See Tex. R. Civ. P. 193.6(a).
However, the trial court may admit untimely disclosed evidence or allow a witness
to testify if the proponent shows there is (1) good cause for its failure to timely
amend its response or identify the witness, or (2) a lack of unfair prejudice or unfair
surprise to the other party. Id. 193.6(a), (b). Even if the party seeking to introduce
the evidence at issue does not carry its burden of establishing the grounds for the
exception, the trial court may grant a continuance or temporarily delay the trial “to
allow opposing parties to conduct discovery regarding any new information
presented by that response.” Id. 193.6(c).

However, Olvera cannot demonstrate he was prejudiced by the trial court’s
actions. Here, the trial court several times offered Olvera a continuance, but he
refused to continue the trial and opted to go forward. Thus, the trial court offered
Olvera the remedy specifically provided for in Rule 193.6(c). See id. Because
Olvera declined the trial court’s offer to continue the proceedings, he cannot show
he was unfairly prejudiced. See Santos v. Comm’n for Lawyer Discipline, 140
S.W.3d 397, 404 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also In re
Commitment of Cruz, No. 04-18-00865-CV, 2021 WL 3639815, at *2 (Tex. App.—
San Antonio Aug. 18, 2021, no pet.) (mem. op.); Sundance Energy, Inc. v. NRP Oil
& Gas LLP, No. 01-18-00340-CV, 2019 WL 3819523, at *8 (Tex. App.—Houston
[1st Dist.] Aug. 15, 2019, pet. denied) (mem. op.); Orbison v. Ma-Tex Rope Co., 553
S.W.3d 17, 39-40 (Tex. App.—Texarkana 2018, pet. denied); Jackson v. Gould, No.
01-16-00203-CV, 2016 WL 5957214, at *5 (Tex. App.—Houston [1st Dist.] Oct.

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13, 2016, no pet.) (mem. op.); Hilburn v. Providian Holdings, Inc., No. 01-06-
00961-CV, 2008 WL 4836840, at *10-11 (Tex. App.—Houston [1st Dist.] Nov. 6,
2008, no pet.) (mem. op.).

Olvera claims in his reply brief that “[a] party who becomes aware of
discovery abuse only after trial begins cannot be held to waive its complaint under
these circumstances,” citing Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170
(Tex. 1993), In re Hightower, 580 S.W.3d 248, 254-55 (Tex. App.—Houston [14th
Dist.] 2019, orig. proceeding [mand. denied]), and Wal-Mart Stores, Inc. v. Tinsley,
998 S.W.2d 664, 672 (Tex. App.—Texarkana 1999, pet. denied). However, neither
of these three cases support his contention; they are inapplicable in this case.

In Remington, the supreme court rejected Remington’s argument that “no trial
court may impose discovery sanctions posttrial for pretrial discovery abuse” and
found that “if pretrial discovery abuse is not revealed until after the trial has begun,
or even after trial, a party cannot be said to have waived a claim for sanctions.”
Remington Arms Co., 850 S.W.2d at 170. Sanctions are not the issue in this case.

In Hightower, the trial court granted a post-verdict mistrial, stating in its order:
“Plaintiffs did not waive their objection to the admission of Defendants’ Exhibit 106
[a photo]. Plaintiffs obtained a pretrial ruling through the court’s order in limine and
preserved that objection through trial. Remington Arms Co., Inc. v. Caldwell, 850
S.W.2d 167, 169 (Tex. 1993). Defendants’ violation of that order came to light after
trial. Id. Accordingly, the Court grants Defendants’ motion and declares a mistrial.”
In re Hightower, 580 S.W.3d at 253. We affirmed the trial court’s grant of mistrial,
noting the trial court relied on Remington Arms and held that Plaintiffs preserved
their objection to admission of the photo taken in violation of the court’s
exclusionary order despite Plaintiffs’ failure to contemporaneously object at trial
when the objectionable nature of the photo was not revealed until after trial despite

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a pointed inquiry on the matter. Id. at 255. Here, mistrial as sanctions is not an
issue.

In Tinsley, the court stated that “[w]hen a party has failed to identify evidence
in response to a discovery request, the trial court has the discretion to postpone the
trial and impose sanctions on the offending party for abuse of the discovery process.”
Tinsley, 998 S.W.2d at 672. Again, sanctions are not an issue in this case. But more
importantly, Tinsley actually supports our holding that Olvera waived his complaint
when he rejected the trial court’s offer to continue the case. The Tinsley court found
that because Wal-Mart rejected the trial court’s offer to continue the trial so Wal-
Mart could depose a witness, any complaint about allowing the witness’s testimony
was waived. Id.

In his reply brief, Olvera also contends that the supreme court “has expressly
disapproved of cases forcing a party in Olvera’s position to accept an unwanted
continuance in lieu of a ruling on his discovery complaint” and cites Gutierrez v.
Dallas Independent School District, 729 S.W.2d 691, 693-94 (Tex. 1987). First, the
trial court did not force Olvera to accept a continuance in lieu of ruling on his
discovery complaint. Second, the Gutierrez case predates Rule 193.6(c) and is
inapplicable. “After [1999], the rules of civil procedure have been amended to
expressly allow the trial court to fashion a remedy to correct any prejudice to the
opposing parties caused by a party’s late, or lack of, supplementation by continuing
or postponing the trial.” Orbison, 553 S.W.3d at 40; see also In re Commitment of
Cruz, 2021 WL 3639815, at *2.

Because we conclude that Olvera waived any complaint under Rule 193.6
regarding the admission of untimely disclosed evidence and related witness
testimony, we overrule his issues.

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CONCLUSION

Having overruled Olvera’s issues, we affirm the trial court’s judgment.

/s/ Meagan Hassan
Justice

Panel consists of Justices Wise, Spain, and Hassan.

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