Cano v. Nino's Paint and Body Shop (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)
(Boyce)(admission of business records, business records affidavit, failure to disclose
documentary evidence in discovery, attorney's fees on breach of contract, presentment of claim
as condition precedent)
AFFIRMED: Opinion by Justice Boyce
Before Justices Frost, Brown and Boyce
14-08-00033-CV Richard Cano v. Nino's Paint and Body Shop and Jerry Nino
Appeal from County Court at Law No 2 of Galveston County
Trial Court Judge: Judge C. G. Dibrell III
M E M O R A N D U M O P I N I O N
Appellant Richard Cano appeals from a judgment in favor of appellees Nino's Paint and Body
Shop (“Nino's") and Jerry Nino following a jury trial. Cano contends that the trial court erred by
(1) admitting testimony and documentary evidence offered by Nino that was not produced in
response to discovery requests; (2) admitting into evidence documents offered by Nino under the
business records exception to the hearsay rule; (3) submitting to the jury an instruction to
exclude damages to Cano caused by a third party in calculating any damages awarded to Cano;
and (4) presenting to the jury a question regarding the amount of attorneys' fees to which Nino
was entitled. We affirm.
Richard Cano purchased a Lancair 4-P airplane kit in 2001. By November 2004, Cano had
assembled the airplane and test flights and certification had been performed. Cano asked Jerry
Nino shortly thereafter to paint the airplane, having used Nino's services before to paint his
Cano and Nino entered into an oral contract in November 2004 for Nino to paint the airplane.
Painting the airplane required it to be disassembled and delivered to Nino in parts. Cano
disassembled the airplane and delivered its parts to Nino on two separate occasions in
December 2004; the fuselage was delivered at some point between December 2004 and
Nino finished painting the disassembled parts by the second week of April 2005, after which the
parts were returned to Cano's hangar at Galveston Municipal Airport. The fuselage was moved
to the paint booth on April 10, 2005.
Cano requested a custom paint job that included three colors of striping on the fuselage. By
April 29, 2005, Cano and Nino noticed that the colored paints were not adhering properly to the
pearl white paint coat on the fuselage. Cano and Nino met with representatives of the paint
retailer and manufacturer, who determined that the paint was defective and needed to be
removed. Nino removed much of the defective paint during the first two weeks of May 2005.
When Nino had not completed painting the fuselage by September 6, 2005, Cano applied for a
temporary restraining order and temporary injunction to reclaim possession of the fuselage.
Cano also filed an original petition on September 6, 2005 seeking damages from Nino for breach
of contract stemming from Nino's failure to finish painting the airplane within one month; Nino
disputed that such a time frame was ever agreed upon. The court signed a temporary
restraining order on September 12, 2005 and a temporary injunction on September 30, 2005
requiring Nino to relinquish possession of the fuselage to Cano.
Nino filed his first amended original answer on November 22, 2006. Nino also filed a
counterclaim against Cano for breach of contract and quantum meruit stemming from Cano's
failure to pay Nino for the painting services performed on Cano's airplane. Nino attached five
documents entitled "Garage Repair Order" to his pleading and labeled them as "Exhibit A" to his
counterclaim. The first of these documents was a billing invoice listing the hours spent painting
Cano's airplane and the total cost for the labor, materials, contract artist, and taxes for Nino's
work. The remaining four documents were billing invoices for materials used to work on the
Cano sent Nino interrogatories and requests for production on February 13, 2007. Nino never
responded. Cano filed a motion on September 24, 2007 requesting that Nino "be prohibited from
introducing any evidence, documentary or testimony, that was not included in responses to
Plaintiff's interrogatories and requests for production." The trial court granted this motion on
September 24, 2007.
During trial, Nino attempted to testify about and offer into evidence Defendant's Exhibits 2, 25,
26, 27, and 28. These exhibits corresponded to the five documents that comprised “Exhibit A"
attached to his counterclaim. Cano objected, citing the September 24, 2007 motion. The trial
court revisited its ruling on Cano's motion and allowed Nino to testify regarding the documents,
but restricted the scope of his testimony to information appearing on the face of the documents.
When Nino again offered Defendant's Exhibits 2, 25, 26, 27, and 28 into evidence, Cano
objected to them as hearsay. Nino argued that the documents were admissible under the
business records exception. See Tex. R. Evid. 803(6). The trial court agreed and admitted the
documents over Cano's objection.
On October 2, 2007, the jury found in favor of Nino on (1) Cano's breach of contract claim; and
(2) Nino's counterclaim for breach of contract. The jury awarded Nino $24,354.22 in contract
damages and $5,760.00 in attorneys' fees. The trial court signed a final judgment in conformity
with the jury's verdict on November 28, 2007. Cano appeals from this judgment.
I. Admission of Documents Not Produced in Discovery
Cano asserts that the trial court erred by admitting five documents offered by Nino that were
attached as an exhibit to Nino's first amended answer and counterclaim but were not produced in
response to Cano's discovery requests. Cano further asserts that the trial court erred by
allowing Nino to testify about these five documents.
We review a trial court's evidentiary rulings for abuse of discretion. Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). A trial court abuses its discretion when it rules
without regard for any guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998). We must uphold a trial court's evidentiary ruling if there is any
legitimate basis for the ruling. Id.
Generally, a party who fails to make, amend, or supplement a discovery response in a timely
manner may not offer at trial information that was not timely disclosed, or offer the testimony of a
non-party witness who was not timely identified. Tex. R. Civ. P. 193.6(a). The rule is mandatory
and exclusion of the evidence is automatic "absent a showing of: (1) good cause or (2) lack of
unfair surprise or (3) unfair prejudice." Lopez v. La Madeleine, 200 S.W.3d 854, 860 (Tex. App.-
Dallas 2006, no pet.) (citing Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992)). The
burden of establishing good cause, lack of unfair surprise, or lack of unfair prejudice is on the
offering party, and such a finding must be supported by the record. See id.; Tex. R. Civ. P. 193.6
(b). We conclude that lack of unfair surprise on this record supports the trial court's decision.
The circumstances here parallel Williams v. County of Dallas, 194 S.W.3d 29 (Tex. App.- Dallas
2006, pet. denied). The defendant in Williams was sued for collection of delinquent ad valorem
taxes for 1991 through 1999. Id. at 31. The plaintiff attached to its petition a tax statement
detailing the amounts due from 1991 through 1999 and stating that the suit sought Aall
delinquent taxes owed on th[e] property, whether or not itemized herein for all years." Id. at 33.
The plaintiff offered at trial a tax statement detailing the amounts due from 1991 through 2003.
Id. at 32. The plaintiff never disclosed this exhibit in response to the defendant's discovery
requests. Id. at 33.
The defendant objected to the offer of the tax statement under Rule 193.6(a). Id. at 32. The trial
court overruled her objection because a tax statement for the years 1991 through 1999 was
attached to the petition, and the pleadings explicitly covered any taxes that became delinquent
after the lawsuit was filed. Id. at 32-33. The court of appeals affirmed; it agreed that the
pleadings and attachment provided notice that the collectors sought recovery of all unpaid taxes,
and concluded that the trial court had a legitimate basis for admission of the tax statement
covering the years from 1991-2003. Id. at 33.
Here, as in Williams, Cano complains that Rule 193.6(a) foreclosed admission of Defendant's
Exhibits 2, 25, 26, 27, and 28 because Nino did not produce them in response to Cano's
discovery requests. It is undisputed that Nino failed to produce the exhibits in response to
Cano's requests. It also is undisputed that the exhibits were attached to Nino's first amended
answer and counterclaim filed with the court and sent to Cano on November 22, 2006 _ 10
months before trial.
Under the circumstances of this case, we conclude that lack of unfair surprise provided a
permissible basis to admit Defendant's Exhibits 2, 25, 26, 27, and 28 into evidence. See Malone,
972 S.W.2d at 43; Williams, 194 S.W.3d at 33. Nino established that the documents at issue
were in Cano's possession for at least 10 months before trial, thereby negating any unfair
surprise. Accordingly, the trial court did not abuse its discretion by admitting the exhibits. See
Auld, 34 S.W.3d at 906; Williams, 194 S.W.3d at 33.
With regard to Nino's testimony, Rule 193.6(a) allows testimony by a party who is an individual
when his identity is certain and when his personal knowledge of relevant facts has been
communicated to the opposing party through pleadings, even when that party fails to list himself
as a potential witness in response to discovery requests. Smith v. Sw. Feed Yards, 835 S.W.2d
89, 91 (Tex. 1992) (discussing Rule 215(5), predecessor to Rule 193.6(a)); see also Christian v.
Christian, No. 14-99-00312-CV, 2001 WL 543685, at *2 (Tex. App.- Houston [14th Dist.] May 24,
2001, no pet.) (not designated for publication). Where a witness's identity is certain, the issue
becomes whether his testimony should be limited because of an inadequate discovery response.
See Clark Equip. Co. v. Pitner, 923 S.W.2d 117, 122 (Tex. App.- Houston [14th Dist.] 1996, writ
Cano knew of Nino's identity and his knowledge of relevant facts regarding Defendant's Exhibits
2, 25, 26, 27, and 28 by virtue of Nino's pleadings. The trial court scrupulously limited Nino's
testimony about these exhibits to the information found on the face of the exhibits. Nino was
allowed to testify to the total number of labor hours listed on the face of Defendant's Exhibit 2,
but he was not allowed to testify as to the allotment of those hours to individual tasks such as
sanding, priming, or painting.
Furthermore, to the extent that Cano insisted on excluding testimony beyond the face of these
exhibits, his objections were sustained. See Tex. R. App. P. 33.1. On this record, we cannot say
that the trial court abused its discretion by allowing Nino to testify about Defendant's Exhibits 2,
25, 26, 27, and 28 as limited to information on the face of those exhibits. See Smith, 835 S.W.2d
at 91; Pitner, 923 S.W.2d at 122; see also Christian, 2001 WL 543685, at *2.
Cano also argues on appeal that he was unfairly prejudiced by Defendant's Exhibits 2, 25, 26,
27, and 28 and Nino's related testimony because the limitations placed on Nino's testimony
prevented Cano from properly cross-examining and impeaching Nino regarding the contents of
the exhibits. We need not address this argument because of our conclusion that Cano was not
unfairly surprised by admission of the exhibits. See Malone, 972 S.W.2d at 43; Williams, 194 S.
W.3d at 33. In any event, Cano cannot establish unfair prejudice on this record because he
used his own testimony and documents regarding the cost of materials and the number of hours
expended by Nino's employees in rebuttal to challenge the exhibits and Nino's testimony
regarding them. Cano testified about (1) the number of hours he and two other men spent
completing the paint job after reclaiming the airplane; (2) invoices and receipts for materials he
purchased and used in finishing the paint job; and (3) the daily diary Cano kept of labor
performed on the airplane by Nino and his employees.
We overrule Cano's issue regarding the trial court's admission of testimony and documentary
evidence that was not produced in response to discovery requests.
II. Admission of Exhibits as Business Records
Cano also asserts that the trial court erred by admitting Defendant's Exhibits 2, 25, 26, 27, and
28 under the business records exception to the hearsay rule. As noted above, we review a trial
court's evidentiary rulings for abuse of discretion. Auld, 34 S.W.3d at 906. A trial court abuses
its discretion when it rules without regard for guiding rules or principles. Malone, 972 S.W.2d at
Hearsay is a statement, other than one made by the declarant while testifying, offered in
evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not
admissible unless it meets an exception created by statute or under the Texas Rules of
Evidence. Tex. R. Evid. 802. Otherwise inadmissible hearsay may be admitted into evidence if it
meets the hearsay exception for business records. See Tex. R. Evid. 803(6).
The business records exception has four requirements: (1) the records were made and kept in
the course of a regularly conducted business activity; (2) it was the regular practice of the
business activity to make the records; (3) the records were made at or near the time of the event
that they record; and (4) the records were made by a person with knowledge who was acting in
the regular course of business. In re E.A.K., 192 S.W.3d 133, 141 (Tex. App.- Houston [14th
Dist.] 2006, pet. denied). These requirements must be established by testimony from the
custodian of the records or another qualified witness. Texmarc Conveyor Co. v. Arts, 857 S.W.
2d 743, 748 (Tex. App.- Houston [14th Dist.] 1993, writ denied). Otherwise inadmissible hearsay
must be shown to be reliable or trustworthy in order to be admitted under the business records
exception. See Garcia v. Dutcher Phipps Crane & Rigging Co., No. 08-00-00387-CV, 2002 WL
467932, at *1 (Tex. App.- El Paso Mar. 28, 2002, pet. denied) (not designated for publication);
see also Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.- El Paso 2008,
According to Cano, Nino failed to establish that Defendant's Exhibits 2, 25, 26, 27, and 28 were
(1) made and kept in the course of a regularly conducted business activity; (2) made at or near
the time of the event that they recorded; and (3) reliable and trustworthy. Cano bases his
complaints on Nino's testimony that these exhibits were summaries of business records kept
during the painting work by Nino and his secretary, and were compiled two days after Cano filed
We find McAllen State Bank v. Linbeck Constr. Corp., 695 S.W.2d 10 (Tex. App.- Corpus Christi
1985, writ ref'd n.r.e.), and Curran v. Unis, 711 S.W.2d 290 (Tex. App.- Dallas 1986, no writ), to
be instructive regarding the admissibility of a summary of continuing transactions.
In McAllen State Bank, the trial court admitted two printed summaries of underlying labor and
materials records for work performed by a general contractor. 695 S.W.2d at 16. The court of
appeals held that the summaries were themselves business records even though they
constituted summaries of underlying records of labor and materials used. Id. The general
superintendent for the general contractor identified the summaries and testified regarding the
charges therein. Id. The court concluded that the summaries were admissible as business
records so long as sufficient testimony was provided regarding the predicate requirements for
business records. Id. at 17.
In Curran, 26 years of tax returns for a partnership were offered into evidence through testimony
of the partnership's two records custodians. 711 S.W.2d at 292-93. The opposing party
objected to the admissibility of the returns as business records, citing the failure to meet the
predicate requirements of a business record because the returns were annual compilations of
activity. Id. at 293-94. The custodians testified that the returns were prepared from general
ledger cards reflecting daily bookkeeping entries of the partnership and compiled as annual
summaries of the partnership's profitability. Id. at 295. The custodians also testified that the
returns were made in the regular course of business by someone with personal knowledge, and
that it was the partnership's regular practice to make the returns. Id. at 294.
Based upon the custodians' testimony, the court of appeals held that the proper predicate was
laid and that the tax returns were admissible as business records. Id. at 295-96. The court also
concluded that the returns were trustworthy and were not prepared for litigation because the
returns had an alternative purpose and incentive for being maintained in primarily reporting the
financial condition of the partnership. Id. at 295.
Applying the lessons of McAllen State Bank and Curran, we conclude that the trial court acted
within its discretion in admitting the disputed documents into evidence. With regard to
Defendant's Exhibit 2, Nino testified that (1) the exhibit was maintained in the regular and
ordinary course of his business; (2) the exhibit was kept in the course of regularly conducted
business activity; (3) the exhibit was completed or created at the time at which the events
contained within it were occurring; and (4) he had personal knowledge of the facts contained
within the document. Nino also testified that he was the custodian for Defendant's Exhibit 2, and
that the exhibit truly and accurately reflected the information or events contained therein.
Over the course of multiple voir dire examinations, Nino testified that Defendant's Exhibit 2 was a
compilation of events occurring over the period of time during which Cano's airplane was being
painted, and that he did not compile the events and complete the exhibit until September 8,
2005 because he was not yet finished painting the airplane. Nino also testified that any notation
on Defendant's Exhibit 2 that was not recorded by him was recorded by his secretary at his
direction. Nino testified that the purpose of the exhibit was to obtain authority for the work
requested and to prepare the bill for Cano.
On this record, we cannot say that the trial court abused its discretion in admitting Defendant's
Exhibit 2 under the business records exception to the hearsay rule. See Curran, 711 S.W.2d at
292-96; McAllen State Bank, 695 S.W.2d at 16-17.
With regard to Defendant's Exhibits 25-28, Nino testified that the exhibits (1) were kept in the
ordinary course of his business; (2) were maintained as a part of his business records; (3) were
continuously updated at or near the time supplies were purchased to reflect new supplies
purchased for performing the work on Cano's airplane until September 8; and (4) were prepared
by Nino and his secretary based on true and correct information provided by Nino. Nino also
testified that he was the custodian for Defendant's Exhibits 25-28, and that similar records are
kept by him for every customer of Nino's.
On this record, we cannot say that the trial court abused its discretion in admitting Defendant's
Exhibits 25-28 under the business records exception to the hearsay rule. See Curran, 711 S.W.
2d at 292-96; McAllen State Bank, 695 S.W.2d at 16-17.
We overrule Cano's issue regarding the trial court's admission of Defendant's Exhibits 2, 25, 26,
27, and 28 under the business records exception to the hearsay rule.
III. Jury Instruction to Exclude Damages Caused by Third Party
Cano asserts that the trial court erred by instructing the jury in Question No. 4 to exclude
damages to Cano caused by a third party in calculating damages owed by Nino for breach of
contract. Asserted charge error is harmless if the jury's answers to other questions render the
challenged question immaterial. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.
1995). A jury question is immaterial when its answer cannot alter the effect of the verdict. Id.
Question No. 4 was predicated on a Ayes" answer to Question No. 2 asking whether Nino
breached the contract with Cano. The jury answered "no" to Question No. 2 and did not reach
Question No. 4. Cano does not challenge the jury's "no" answer to Question No. 2 on appeal.
The jury's unchallenged "no" answer to Question No. 2 rendered Question No. 4 immaterial. See
id. Therefore, any asserted error in the instructions accompanying Question No. 4 was
harmless. See id.
We overrule Cano's issue regarding the trial court's jury instruction concerning Cano's damages.
IV. Jury Question on Nino's Recovery of Attorneys' Fees
Cano asserts that the trial court erred by submitting Question No. 9 to the jury regarding how
much to award Nino for his attorneys' fees because Nino failed to establish that he presented a
claim for payment to Cano.
Whether a party is entitled to recover attorneys' fees is a question of law for the court; the
amount to be awarded is a question of fact for the jury. Holland v. Wal-Mart Stores, 1 S.W.3d 91,
94 (Tex. 1999); Chudleigh v. Papadopoulos, No. 14-01-00088-CV, 2002 WL 576092, at *4 (Tex.
App.- Houston [14th Dist.] Apr. 18, 2002, pet. denied) (not designated for publication).
A party who prevails on a breach of contract claim is entitled to recover attorneys' fees for
prosecution of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). To
recover attorneys' fees, a claimant first must present the claim to the opposing party or his
agent. Id. § 38.002(2) (Vernon 2008). The statute is to be generously construed to promote its
underlying purpose. Id. § 38.005 (Vernon 2008); Chudleigh, 2002 WL 576092, at *5.
Presentment may be made either before or after filing suit, provided it is made at least 30 days
before judgment. Chudleigh, 2002 WL 576092, at *5. In a breach of contract case, presentment
is established when a party presents the contract claim to the opposing party and that party fails
to tender performance. Id. The purpose of presentment is to allow the party against whom the
claim is asserted a reasonable opportunity to pay a claim without incurring an obligation for
attorneys' fees. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006). No
particular form of presentment is required; all that is necessary is that a claimant show that a
claim for payment was made to the opposing party and that the opposing party refused to pay
the claim. Quality Infusion Care, Inc. v. Health Care Serv. Corp., 224 S.W.3d 369, 387 (Tex. App.
- Houston [1st Dist.] 2006, no pet.).
Nino and Cano both testified that Cano had not paid Nino for the labor or supplies used in
painting Cano's airplane. During direct examination, Nino was asked whether he requested
payment from Cano for the expenses shown on Defendant's Exhibit 2; Nino testified that he had,
and that Cano responded by filing suit against him for breach of contract.
Construing section 38.002 generously, we cannot say on this record that the trial court erred in
concluding that presentment had been satisfied so as to allow recovery of attorneys' fees. See
Chudleigh, 2002 WL 576092, at *4-*6; see also Criton Corp. v. Highlands Ins. Co., 809 S.W.2d
355, 358 (Tex. App.- Houston [14th Dist.] 1991, writ denied) (general contractor's president's
testimony that he telephoned subcontractor's president and requested full performance and that
this request was refused established presentment); Robray Offshore Drilling Co. v. Thomas, 751
S.W.2d 911, 912 (Tex. App.- Houston [14th Dist.] 1988, no writ) (claimant's testimony that he
demanded payment of his medical expenses and disability payments which were indisputably not
paid established presentment).
We overrule Cano's issue regarding the trial court's submission to the jury of Question No. 9
regarding the amount of attorneys' fees to which Nino was entitled.
The trial court's judgment is affirmed.
/s/ William J. Boyce
Panel consists of Justices Frost, Brown, and Boyce.