Accelerated Inventory Management, LLC v. Benjamin McElroy

AFFIRM and Opinion Filed June 12, 2024

S In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00017-CV

ACCELERATED INVENTORY MANAGEMENT, LLC, Appellant
V.
BENJAMIN MCELROY, Appellee

On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-01519

MEMORANDUM OPINION NUNC PRO TUNC
Before Justices Reichek, Carlyle, and Miskel
Opinion by Justice Carlyle

Appellant Accelerated Inventory Management, LLC sued appellee Benjamin

McElroy for breach of contract based on McElroy’s failure to repay a loan. On

appeal, Accelerated argues the trial court abused its discretion when it excluded

Accelerated’s evidence and witnesses and granted a take-nothing judgment in

McElroy’s favor. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.

BACKGROUND

Accelerated’s initial disclosures (1) identified appellee Benjamin McElroy

and Daniel Laux, Accelerated’s representative, as people having knowledge of
relevant facts and (2) included a business records affidavit authenticating copies of

the loan, payment schedule, and other documents concerning the loan. See TEX. R.

EVID. 902(10). Neither party filed mandatory pretrial disclosures. See TEX. R. CIV.

P. 194.4.

Both parties were represented by counsel at the October 27, 2022 bench trial.

McElroy timely objected to the introduction of any testimony based on Accelerated’s

nondisclosure of witnesses and exhibits. See id. The trial court confirmed

Accelerated had no witnesses available, granted McElroy’s objection, issued a take-

nothing judgment in his favor, and denied Accelerated’s Motion for New Trial.

On appeal, Accelerated argues in a single issue that the trial court abused its

discretion when it excluded Accelerated’s exhibits and witness testimony because

(1) its exclusion amounted to a death penalty sanction; (2) Accelerated’s failure to

file pretrial disclosures did not unfairly surprise or prejudice McElroy; and (3) Texas

Rule of Civil Procedure 194 does not mandate the exclusion of evidence and witness

testimony.

STANDARD OF REVIEW

“We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion.” In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). “A trial court abuses

its discretion if it acts in an arbitrary or unreasonable manner or acts without

reference to any guiding principles.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.

1998); see also In re Alford, 645 S.W.3d 315, 316 (Tex. App.—Dallas 2022, no pet.)

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(“An abuse of discretion occurs when a trial judge reaches a decision that is so

arbitrary and unreasonable that it amounts to a clear error of law or violates a

ministerial duty.”). “To determine if an abuse of discretion occurred, we must decide

whether the trial court (1) had sufficient information upon which to exercise its

discretion, and (2) erred in the exercise of its discretion.” Interest of J.A.A., No. 05-

22-00578-CV, 2023 WL 4944505, at *1 (Tex. App.—Dallas Aug. 3, 2023, no pet.)

(mem. op.).

APPLICABLE LAW

Under the Texas Rules of Civil Procedure, parties are required to provide

opposing parties with certain information about evidence they may present at trial,

other than solely for impeachment purposes, at least 30 days before trial. See TEX.

R. CIV. P. 194.4. A party may not introduce material or information that was not

timely disclosed unless the trial court finds that “(1) there was good cause for the

failure to timely make, amend, or supplement the discovery response; or (2) the

failure to timely 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 party seeking to introduce the evidence carries the burden of establishing either

good cause for the failure to disclose or that the failure will not unfairly surprise or

prejudice the other party. TEX. R. CIV. P. 193.6(b).

ANALYSIS

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Accelerated first argues the trial court’s exclusion of its witnesses constituted

a death penalty sanction under Texas Rule of Civil Procedure 215 and that the trial

court abused its discretion when it levied this sanction. We disagree because the trial

court’s ruling was not a sanction under Rule 215.

First, the trial court’s ruling followed Texas Rule of Civil Procedure 193.6.

Second, Accelerated did not fail to comply with an order or a discovery request;

instead, it failed to comply with Rule 194.4. Third, Rule 193.6 contains its own

mandatory enforcement mechanism based on a specific condition precedent. Fourth,

there is no evidence the trial court viewed its ruling as a sanction or that it predicated

its ruling on Rule 215. Fifth, the trial court’s ruling did not eliminate Accelerated’s

option to request a continuance. See TEX. R. CIV. P. 193.6(c). Sixth, the trial court’s

ruling did not eliminate Accelerated’s option to nonsuit its claims. See TEX. R. CIV.

P. 162. Thus, we conclude the trial court’s ruling was not a sanction under Texas

Rule of Civil Procedure 215 and that even if it was, it neither adjudicated

Accelerated’s claim nor unilaterally precluded Accelerated from presenting the

merits of its case. See Chrysler Corp v. Blackmon, 841 S.W.2d 844, 845 (Tex. 1992).

Accelerated also argues that the trial court abused its discretion because

Accelerated’s failure to file pretrial disclosures did not unfairly surprise or prejudice

McElroy. Even when we assume that the trial court erred, Accelerated has not

preserved error. See Sink v. Sink, 364 S.W.3d 340, 346–47 (Tex. App.—Dallas 2012,

no pet.). As a general rule, a party is required to present a timely complaint to the

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trial court before being allowed to raise the issue on appeal. See TEX. R. APP. P.

33.1(a)(1). A timely objection is one that is made “at a point in the proceedings which

gives the trial court the opportunity to cure any alleged error.” Crews v. Dkasi Corp.,

469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied).

“A party may claim error in a ruling to . . . exclude evidence only if the error

affects a substantial right of the party and . . . a party informs the court of its

substance by an offer of proof, unless the substance was apparent from the context.”

TEX. R. EVID. 103(a)(2); see also Sink, 364 S.W.3d at 347 (complaining party must

offer the evidence and secure adverse ruling from the trial court). “Making an offer

of proof enables an appellate court to determine whether the exclusion of the

evidence was erroneous and harmful, and it allows the trial court to reconsider its

ruling in light of the actual evidence.” Talabera v. State, No. 05-21-00613-CR, 2023

WL 2300540, at *2 (Tex. App.—Dallas Mar. 1, 2023, no pet.) (mem. op.).

Accelerated did not make an offer of proof or a bill of exception and the issue of

whether the substance of its evidence is apparent from the context has not been

briefed. See TEX. R. APP. P. 38.1(i). Under these facts, we cannot determine whether

the exclusion of Accelerated’s evidence was harmful because there is no evidence it

had any evidence. See Sink, 364 S.W.3d at 347. Accordingly, assuming error, we

cannot conclude it caused the rendition of an improper judgment. See TEX. R. APP.

P. 44.1(a).

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Finally, Accelerated argues the trial court erred when it prohibited Accelerated

and its corporate representative from testifying because (1) McElroy was on notice

they would testify at trial and (2) Texas Rule of Civil Procedure 193.6 excludes a

named party from its prohibitions. Assuming Accelerated is correct on both counts,

it nonetheless failed to demonstrate harm. See Sink, 364 S.W.3d at 346–47.

Instead, the record affirmatively demonstrates that Accelerated had no

witnesses available on the day of trial, the trial court was aware of that fact, and

Accelerated nonetheless failed to argue McElroy was incorrect, offer any evidence

of any kind, or request statutorily authorized relief. See, e.g., TEX. R. CIV. P. 193.6(c).

Further, Accelerated has not shown its witnesses were available to be called that day

or what those witnesses would have said if they were allowed to testify. See TEX. R.

EVID. 103(a); see also Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999)

(“Absent a showing of what such testimony would have been, or an offer of a

statement concerning what the excluded evidence would show, nothing is presented

for review.”) (citing Stewart v. State, 686 S.W.2d 118 (Tex. Crim. App. 1984), cert.

denied, 474 U.S. 866 (1985)). Thus, we cannot conclude the trial court abused its

discretion because Accelerated has not shown it was harmed. Sink, 364 S.W.3d at

347; see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 569 (Tex.

App.—Houston [1st Dist.] 1996, aff’d on other grounds, 972 S.W.2d 35 (Tex. 1998)

(holding appellant could not show it was harmed by the court’s exclusion of its

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witnesses when it failed to indicate the substance of the testimony its witnesses

would have provided if called).

We affirm.

/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE

230017F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT NUNC PRO TUNC

ACCELERATED INVENTORY On Appeal from the 44th Judicial
MANAGEMENT, LLC, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-22-01519.
No. 05-23-00017-CV V. Opinion delivered by Justice Carlyle.
Justices Reichek and Miskel
BENJAMIN MCELROY, Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee BENJAMIN MCELROY recover his costs of
this appeal from appellant ACCELERATED INVENTORY MANAGEMENT,
LLC.

Judgment entered June 12, 2024.

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