Opinion issued June 21, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00318-CV ——————————— ANTHONY AMUDO, Appellant V. CHRISTIANA AMUDO, Appellee
On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2009-58679
MEMORANDUM OPINION
Appellant, Anthony Amudo, challenges the trial court’s order denying his
motion to modify child support. In six issues, Anthony contends that the trial court
erred in excluding evidence as a discovery sanction, not granting a continuance, and
not filing findings of fact and conclusions of law. We affirm.
Background
In 2011, the trial court signed a final decree, granting Anthony and his wife,
Christiana Amudo, a divorce and awarding Christiana primary conservatorship of
their three children. In the decree, the trial court ordered that Anthony pay monthly
child support of $2,250.00 and that he provide the children with health insurance.
On December 31, 2015, Anthony filed a “Petition to Modify [the]
Parent-Child Relationship,” requesting that the trial court decrease his monthly
child-support and health-insurance obligations because his circumstances had
materially and substantially changed since the date of the decree. Christiana filed
an answer, generally denying the allegations.
In March 2016, the Office of the Attorney General for the State of Texas
(“OAG”) intervened in the suit and served Anthony with a request for production of
several documents, including his federal tax returns for the preceding two years,
documentation of income, accounts, and available health insurance.
In June 2016, Anthony sent discovery requests to Christiana, who was pro se.
When the parties appeared for trial on August 16, 2016, however, Christiana’s newly
retained counsel requested a continuance. The trial court granted a continuance,
reset trial for October 10, 2016, ordered that Anthony send to Christiana’s new
2 counsel a copy of his outstanding discovery requests, and that Christiana respond
within 30 days.
On August 30, 2016, Christiana filed a certificate of written discovery, stating
that she had served Anthony with a set of interrogatories, requests for production,
and requests for disclosure.
On or about September 29, 2016, Anthony responded to each of Christiana’s
discovery requests with an objection that the request was untimely because it had
been served on him too close to the October 10, 2016 trial.
On October 10, 2016, trial was reset to January 24, 2017. Trial was later held
on March 24, 2017.
At the beginning of trial, Christiana moved for a directed verdict and asked
the trial court to dismiss the case, asserting that, although Anthony had, on
September 29, 2016, served her with a response to her discovery requests, his “only
answer” to all of her questions and requests was a “blanket objection” as follows:
“Objection is made to this interrogatory because it was served on Petitioner less than
30 days before the end of the discovery period, Texas Rules of Civil Procedure
197.1.” Christiana complained that, after the October 10, 2016 trial was reset:
[Anthony] never amended [his] responses except to send a—on the 14th of February [2017] . . . what purports to be a 2016 tax return. [He] did not respond to any of the bank statements. This is a gentleman who claims to be self-employed. No bank statements were provided. Those were specifically requested. None of the information about accounts, none of the information about who he works for, absolutely 3 nothing. And I do have a copy of . . . [his] original responses as well as [his] supplemental responses if the Court needs to see those.[1] Additionally, the local rules require that ten days prior to any trial involving child support, a party must file and serve upon the other side a financial information statement, which would contain the last two years’ tax returns as well as the most recent pay stubs. That was not done by [Anthony] or [his counsel].
Anthony responded that his objection, i.e., that Christiana’s discovery
requests were untimely because she sent them too close to the October 10, 2016 trial
setting, was “proper at the time [it was] made.” He asserted that Christiana had
waived any complaint about his objection because, after trial was reset, she “never
re-served [him] with discovery,” “never filed a motion to compel,” and “never asked
[him] to waive [his] objections.” He also asserted that, on January 28, 2017, he had
sent to Christiana, via e-service and email, a copy of his responses to the AG’s
discovery requests. And, he later supplemented his responses to the OAG with his
2016 tax return, which he also sent to Christiana.
The trial court ruled that it would “exclude any documents that should have
been produced that were not produced and [any testimony regarding] the information
that would have been included in documents that should have been produced that
were not produced” in response to Christiana’s discovery requests. The trial court
noted that the Texas Rules of Civil Procedure 193.5 and 193.62 “specifically say
1 There is not a copy of Anthony’s responses in the record before us. 2 See TEX. R. CIV. P. 193.5, 193.6.
4 [that] if a party discovers an objection—although proper [when] made—is no longer
proper or complete, they have to supplement or amend their response,” and that its
ruling included that Anthony “should have supplemented [his] responses” to
Christiana’s discovery requests after the October trial date was reset. Thus, the trial
court excluded the portions of Anthony’s evidence and testimony that would have
been responsive to such discovery requests.3 Anthony argued that the trial court
“should find good cause for the failure to supplement or amend” his discovery
responses because Christiana did not respond to his discovery requests.4 The trial
3 Rule 193.6 provides, in pertinent part, as follows: (a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the 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. (b) Burden of Establishing Exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record. TEX. R. CIV. P. 193.6. Unless one of its exceptions apply, this exclusionary rule is mandatory and automatic, and does not require a motion to compel or pretrial ruling to trigger its application. See id.; Santana v. Santana, No. 02-15-00140-CV, 2016 WL 278781, at *2 (Tex. App.—Fort Worth Jan. 21, 2016, no pet.) (mem. op.). 4 See TEX. R. CIV. P. 193.6(a).
5 court declined to find good cause. The trial court also noted that the local rules 5
require that, in any suit in which child support is in issue, the parties provide to one
another a financial information statement (“FIS”). Anthony conceded that he had
not provided an FIS to Christiana.
Anthony testified at trial regarding his education and credentials in the oil and
gas industry and the nature of his employment and salary in 2011, when the original
decree was signed, through 2013. He also discussed his business, “J-Drill,” and his
its income through 2013. When Anthony attempted to testify regarding his change
in circumstances, i.e., his employment, income, and resources at the time of his
petition for modification in 2015, and thereafter, Christiana objected on the ground
that his testimony would have been responsive to certain of her interrogatories or to
the information she requested in certain of her requests for production. The trial
court sustained her objections. Anthony asserted that, in January 2017, in response
to the AG’s discovery requests, he had e-mailed “all of” his tax returns to Christiana.
The trial court directed the parties, while in the courtroom, to “pull up the e-mail and
see if that data [i.e., Anthony’s tax returns] [were] included in the e-mail.” After the
parties were unable to locate the email, the trial court ruled that it would exclude any
testimony by Anthony concerning his employment and income after January 1,
2014. The trial court asked Anthony if he had any other evidence to prove a material
5 See HARRIS CTY. FAM. TRIAL DIV. LOC. R. 4.4. 6 and substantial change of circumstances to support his petition to modify the decree.
After Anthony responded that he did not, Christiana re-urged her motion for a
directed verdict, which the trial court granted. The trial court then signed an order
denying Anthony’s motion to modify the decree.
Subsequently, Anthony filed a request for findings of fact and conclusions of
law and a notice of past due findings and conclusions. The trial court declined to
make the requested findings and conclusions, explaining by letter to the parties that
it had determined that such were neither necessary nor appropriate.
Findings of Fact and Conclusions of Law
In his sixth issue, Anthony argues that the trial court erred in not filing
findings of fact and conclusions of law because they were timely requested. He
asserts that such failure constituted harmful error because he “demonstrated that he
could have been entitled to the relief he sought.”
In a case tried without a jury, a party may ask the trial court to file written
findings of fact and conclusions of law. TEX. R. CIV. P. 296. The trial court shall
file its findings within twenty days after the filing of a timely request. TEX. R. CIV.
P. 297. If the trial court fails to do so, the requesting party shall, within thirty days
after filing the original request, file with the clerk a notice of past due findings. Id.
Once this notice is filed, the time for filing findings is extended to forty days from
the date of the original request. Id.
7 “[A] trial court must file written findings of fact and conclusions of law when
timely requested by a party.” Baltzer v. Medina, 240 S.W.3d 469, 473 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). A failure to do so constitutes error and is
presumed harmful unless the record affirmatively shows that the complaining party
has suffered no harm. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996). Error is
harmful if it prevents the appellant from properly presenting a case to the appellate
court. Id. “The controlling issue is whether the circumstances of the particular case
would require an appellant to guess at the reasons for the trial court’s decision.”
Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied).
Here, even were we to conclude that the trial court erred in not filing findings
of fact and conclusions of law, such error was harmless because it did not leave
Anthony to guess the basis for its ruling and did not prevent him from making a
proper presentation of his case to this Court. See Graham Cent. Station, Inc. v. Pena,
442 S.W.3d 261, 263 (Tex. 2014). Because a complete reporter’s record was filed,
in which the trial court’s rulings are extensively detailed, Anthony was able to fully
brief, and we were able to fully review, the issues he presented. He does not identify
any issue that he was unable to brief as a result of any failure by the trial court to
make findings of fact and conclusions of law. See Watts v. Oliver, 396 S.W.3d 124,
131 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
8 We overrule Anthony’s sixth issue.
Exclusion of Evidence
In his first, second, third, and fifth issues, Anthony argues that the trial court
erred in excluding his evidence and testimony of his change in circumstances, 6 to
support his 2015 petition for modification, because he timely objected to
Christiana’s discovery requests and Christiana did not file a motion to compel or
obtain a pretrial ruling on his objections. He also argues that the trial court erred in
excluding his evidence under Texas Rule of Civil Procedure 193.6 because he met
his burden to show good cause and a lack of unfair surprise. He further argues that,
because the modification of child support was the only issue in this case, the
exclusion of his evidence to support his change in financial circumstances was
“unjust,” essentially adjudicated the modification issue, and constituted an improper
“death penalty sanction.”
6 To prevail on his suit to modify child support, Anthony, as the party seeking a modification, had the burden to show that the circumstances of the children or a person affected by the order had materially and substantially changed since, as applicable here, the date of rendition of the decree. See TEX. FAM. CODE ANN. § 156.401(a)(1)(A)(West Supp. 2017). In determining whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). The record must contain both historical and current evidence of the relevant person’s financial circumstances. Id. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id.
9 We review a trial court’s decision to exclude evidence for an abuse of
discretion. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); Harris Cty. v. Inter Nos, Ltd., 199 S.W.3d 363, 367 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). A trial court abuses its discretion if it rules without regard
to any guiding rules or principles. Malone, 972 S.W.2d at 43. We will uphold the
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). 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); Sw. Elec. Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 474
(Tex. 1998).
To preserve error concerning an exclusion of evidence, the complaining party
“must actually offer the evidence and secure an adverse ruling from the [trial] court.”
Akukoro v. Akukoro, No. 01-12-01072-CV, 2013 WL 6729661, at *6 (Tex. App.—
Houston [1st Dist.] Dec. 19, 2013, no pet.) (mem. op.); Fletcher v. Minn. Mining &
Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
Although the reviewing court may sometimes be able to discern from the record the
general nature of the evidence and the propriety of the trial court’s ruling, it cannot,
without an offer of proof, determine whether exclusion of the evidence was harmful.
10 Fletcher, 57 S.W.3d at 606; see also In re M.G.N., 491 S.W.3d 386, 399 (Tex.
App.—San Antonio 2016, pet. denied) (“Without an offer of proof, an appellate
court cannot make a determination whether the trial court committed reversible
error.”); Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.—
Houston [1st Dist.] 1997, no pet.) (holding that, in absence of offer of proof, court
has no basis to review contention that trial court reversibly erred by excluding
documents and testimony). Thus, when a trial court excludes evidence, the
proponent must preserve the evidence in the record in order to complain of its
exclusion on appeal. Fletcher, 57 S.W.3d at 606; see also TEX. R. EVID. 103(a), (b).
If a party does not make an offer of proof, it must introduce the excluded evidence
into the record by a formal bill of exception. Sw. Country Enters., Inc. v. Lucky Lady
Oil Co., 991 S.W.2d 490, 494–95 (Tex. App.—Fort Worth 1999, pet. denied); see
also TEX. R. APP. P. 33.2. Failure to demonstrate the substance of the excluded
evidence or testimony through an offer of proof or bill of exception results in a
waiver of any error in its exclusion. Akukoro, 2013 WL 6729661, at *6; Sw. Country
Enters., 991 S.W.2d at 494.
Here, when the trial court excluded Anthony’s “documents” and his testimony
related to the content of those documents, Anthony did not make an offer of proof
or file a bill of exception. Nor does the record contain Christiana’s discovery
requests, the OAG’s discovery requests, or Anthony’s responses. Thus, we hold
11 that Anthony did not preserve for review his complaint based on the trial court’s
exclusion of evidence and testimony. See TEX. R. APP. P. 33.2; TEX. R. EVID.
103(a)(2); Akukoro, 2013 WL 6729661, at *6 (holding that error was not preserved
because party did not make offer of proof or bill of exception regarding excluded
evidence); Hasselbalch v. Hasselbalch, No. 01-99-01239-CV, 2002 WL 188826, at
*2 (Tex. App.—Houston [1st Dist.] Feb. 7, 2002, no pet.) (holding that error not
preserved because party “made no attempt to secure an offer of proof or present a
bill of exception memorializing the substance of [the] excluded testimony”).
Anthony complains that, because the modification of child support was the
only issue in this case, the trial court’s exclusion of his evidence of his change in
financial circumstances was “unjust,” essentially adjudicated the modification issue,
and constituted an improper death penalty sanction subject to a TransAmerican
analysis. See TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.
1991) (holding that discretionary sanctions imposed for discovery abuses must be
just, no more severe than necessary to satisfy legitimate purposes, and directed
against the abuse and toward remedying the prejudice caused to the innocent party).
The exclusion of evidence under Rule 193.6, as here, “is a matter of
admissibility rather than a sanction for discovery abuse.” In re J.A.M., Jr., No. 04-
11-00165-CV, 2012 WL 1648215, at *5 (Tex. App.—San Antonio May 9, 2012, pet.
denied) (mem. op.). Because the exclusion of evidence under 193.6 is automatic and
12 is not discretionary, the trial court’s imposition of the automatic exclusions
mandated by rule 193.6 is not a death-penalty sanction and is not subject to review
under a TransAmerican analysis.7 Santana v. Santana, No. 02-15-00140-CV, 2016
WL 278781, at *2 n.4 (Tex. App.—Fort Worth Jan. 21, 2016, no pet.) (mem. op.)
(holding that Rule 193.6(a) exclusion of evidence is mandatory and automatic, and
no motion to compel or pretrial ruling is required); White v. Perez, No. 2-09-251-
CV, 2010 WL 87469, at *1–2 (Tex. App.—Fort Worth Jan. 7, 2010, pet. denied)
(mem. op.); Didur–Jones v. Family Dollar Inc., No. 02-09-00069-CV, 2009 WL
3937477, at *3 (Tex. App.—Fort Worth Nov. 19, 2009, pet. denied) (mem. op.)
(holding that “the cautionary factors” set out in TransAmerican apply to
discretionary sanctions, not to automatic exclusions under Rule 193.6).
We overrule Anthony’s first, second, third, and fifth issues.
7 Similarly, with regard to Anthony’s complaint that the trial court erred in imposing “exclusion sanctions” because Christiana, ”[b]y failing to seek a ruling on the discovery issues, . . . waived her right to the discovery sought, and to any sanctions related to discovery up to and including the exclusion of evidence,” citing McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex. 1989); In re City of Hous., 418 S.W.3d 388, 394 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding); Lewis v. W. Waste Indus., 950 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1997, no writ), none of these cases are based on the mandatory, automatic exclusion of evidence under Rule of Civil Procedure 193.6. See TEX. R. CIV. P. 193.6. Further, McKinney and Lewis pre-date the rule. See id. (enacted Aug. 5, 1998). 13 Continuance
In his fourth issue, Anthony argues that the trial court erred in not granting his
request for a continuance to allow him to amend or supplement his discovery
responses. See TEX. R. CIV. P. 193.6(c).
Even if a party does not carry his burden of establishing an exception to the
automatic exclusion in Rule 193.6, the trial court may grant that party’s request for
a continuance and temporarily postpone the trial to allow a response to be amended
or supplemented and to allow opposing parties to conduct discovery regarding any
new information presented by that response. TEX. R. CIV. P. 193.6(c); Santana, 2016
WL 278781, at *1. We review a trial court’s ruling on a motion for continuance
under an abuse of discretion standard. BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 800 (Tex. 2002).
Here, we note that Anthony, during trial, presented an oral motion for
continuance, without a supporting affidavit. See TEX. R. CIV. P. 251 (providing that
continuance may be granted only for “sufficient cause supported by affidavit,” by
consent of the parties, or by operation of law). Notwithstanding, however, in his
brief, he complains that the trial court “did not rule on the request.” To present a
complaint for appellate review the record must show that a complaint was
communicated to the trial court by a timely motion, request, or objection, complying
with the requirements of the rules of civil procedure, and that the trial court ruled on
14 the request, objection, or motion, either expressly or implicitly, or refused to rule
and the complaining party objected to the refusal. See TEX. R. APP. P. 33.1(a).
Without a ruling from the trial court on his request for a continuance, we hold that
Anthony has not preserved his complaint for review and has thus waived the issue.
See id.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.