TRACY NIXON, Appellant v. GMAC MORTGAGE CORPORATION, Appellee

AFFIRMED; Opinion Filed September 18, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00256-CV
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TRACY NIXON, Appellant
V.
GMAC MORTGAGE CORPORATION, Appellee
.............................................................
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-10491-B
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MEMORANDUM OPINION
Before Chief Justice Thomas and Justices O'Neill and Murphy
Opinion By Chief Justice Thomas
        Appellant sued appellee for negligence, wrongful foreclosure, breach of contract, and “cadres.” The jury determined appellee did not fail to comply with the parties' agreement, and the trial court entered judgment that appellant take nothing. In two issues, appellant contends (1) his right to due process was violated because he did not receive forty-five days' notice of the trial setting or three-days' notice of appellee's trial exhibits and motion in limine, and (2) the trial court erred by denying appellant's motion to reopen the evidence and motion for new trial. The parties are familiar with the procedural and factual history of the case, and we set out only the facts necessary to resolution of the issues raised on appeal. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
Background
 
        Appellant filed his original petition on October 12, 2005. On April 16, 2007, the trial court notified the parties the case was set for trial on June 4, 2007. The case was not reached on June 4, 2007, and on June 7, 2007, the trial court notified the parties the case was set for trial on November 12, 2007. On November 12, 2007, the trial court contacted the parties and conducted a hearing regarding whether the case was ready to be tried on November 13, 2007. Appellee objected to the case proceeding to trial because appellant had filed an amended petition containing new claims. Appellant opposed a continuance and agreed the trial court could strike the amended petition.
        The trial court then inquired whether there was “anything to talk about as far as witness lists, exhibit lists, motion in limines?” The parties did not respond to the inquiry; rather, appellee's counsel returned to the issue of continuing the trial setting. The trial court then asked appellant who his witnesses would be at trial. Appellant responded he would rely on exhibits and would not call any witnesses to testify. Appellant indicated those exhibits were “FHA loans that I applied for with GMAC Mortgage Corporation.” In response to the trial court's inquiry as to what appellee needed to do to prepare for trial, appellee's counsel responded “Well, what I would need is I would need a witness who could testify about whether they did - about the compliance with the FHA guidelines that [appellant] is complaining about.” The trial court made no further inquiry as to any exhibits appellee would use at trial, and appellee's counsel made no representations about what exhibits appellee would offer at trial. At trial, appellee offered, and the trial court admitted, several exhibits.
        The jury determined appellee did not breach its agreement with appellant, and the trial court entered a take nothing judgment in favor of appellee. Appellant timely filed a combined motion for new trial and motion to reopen the evidence. The trial court denied the motion, and this appeal ensued.
Notice
 
        In his first issue, appellant contends his right to due process was violated because (1) he did not receive forty-five days' notice of the trial setting as required by Texas Rule of Civil Procedure 245; (2) he did not receive three days' notice of appellee's trial exhibits and motion in limine as required by Texas Rules of Civil Procedure 21 and 21a; and (3) in violation of Texas Rule of Civil Procedure 166, appellee did not disclose its trial exhibits at the pretrial conference.
        Appellant first argues he did not receive notice of the November 13 trial setting pursuant to rule of civil procedure 245. Appellant, however, did not object in the trial court to lack of notice of the trial setting and objected to appellee's request the trial date be continued. Appellant, therefore, failed to preserve any error regarding proper notice of the trial setting for our review. Tex. R. App. P. 33.1(a); Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.-Dallas 2006, no pet.) (appellant waived any error based on lack of proper notice under rule 245 by failing to object to that lack of notice in trial court).
        Relying on rule of civil procedure 166, appellant next complains the trial court erred by admitting exhibits that appellee failed to disclose at the pretrial conference on November 12. Rule 166 permits the trial court to direct parties to appear before it at a pretrial conference to consider, among other things, the exchange of exhibits. Tex. R. Civ. P. 166. Here, the trial court directed the parties to appear before it to discuss whether the case was ready to go to trial the next day. Although the trial court inquired whether the parties needed to discuss anything relating to exhibits, nothing in the record indicates the trial court ordered the parties to designate exhibits at the pretrial hearing. Further, nothing in the record reflects the trial court entered a scheduling order requiring the parties to designate exhibits prior to trial or that the parties propounded any discovery requiring the production of documents. Further, even if we assume the trial court's general inquiry about exhibits at the conference required appellee to disclose its trial exhibits, it was within the trial court's discretion to modify that requirement and allow appellee to use the exhibits at trial. In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.-Dallas 2008, no pet.). Therefore, the trial court did not err by admitting exhibits at trial that were not disclosed by appellee at the pretrial conference.
        Appellant also argues appellee violated rules of civil procedure 21 and 21a by serving appellant with appellee's trial exhibits and motion in limine on the day of trial. As noted above, nothing in the record indicates appellee was required by the trial court to serve these documents on appellant prior to trial. Further, rule 21 is inapplicable to a trial setting. Tex. R. Civ. P. 21; Twist v. McAllen Nat'l Bank, 248 S.W.3d 351, 361 (Tex. App.-Corpus Christi, 2007, orig. proceeding [mandamus denied]). Finally, the record reflects appellee served appellant with the documents by hand-delivery on the day of trial and, therefore, complied with rule 21a. Tex. R. Civ. P. 21a.
        We overrule appellant's first issue.
Post-Trial Motions
 
        In his second issue, appellant asserts the trial court erred by denying appellant's motion to reopen the evidence and motion for new trial based on new evidence appellant purportedly discovered after trial. We review the trial court's ruling on a motion for new trial or a motion to reopen the evidence for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam) (motion for new trial); Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.-Dallas 2004, pet. denied) (motion to reopen the evidence). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner or when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).         Rule of civil procedure 270 provides the trial court may, in the interest of justice, allow a party to reopen the evidence after the party has rested. Tex. R. Civ. P. 270. However, rule 270 specifically prohibits the reopening of the evidence in a jury trial after the jury has reached a verdict. Id. Here, appellant requested to reopen the evidence after the jury's verdict was received and the jury discharged. Accordingly, the trial court did not abuse its discretion by denying appellant's request.
        Appellant also sought a new trial based on the newly discovered evidence. To obtain a new trial based on newly discovered evidence, appellant was required to (1) introduce admissible relevant evidence at the hearing on the motion for new trial demonstrating the existence of newly discovered evidence on which appellant relied; (2) demonstrate the evidence had come to his knowledge since the trial and that he could not have discovered the evidence prior to trial with the exercise of due diligence; (3) demonstrate the evidence was not cumulative or to be used for impeachment; and (4) demonstrate the evidence is so material it would probably produce a different result if a new trial were granted. In re S.M.V., 287 S.W.3d 435, 451 (Tex. App.-Dallas 2009, no pet.); Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 844 (Tex. App.-Dallas 2008, no pet.). “Each of the elements must be established by an affidavit of the party.” Rivera, 262 S.W.3d at 844.
        Appellant did not file an affidavit in support of his motion for new trial. Instead, appellant verified that “every statement contained [within the motion] is true and correct and within [appellant's] personal knowledge.” However, while the motion contained conclusory statements that “the newly discoverd [sic] evidence was acquired subsequent to the former trial” and “it was not owing to want of diligence the evidence was not discovered and obtained in time to be used when the case was tried,” there are no facts in the motion to support appellant's claim the evidence was discovered after trial or that he could not have discovered the evidence prior to trial using due diligence. Accordingly, assuming appellant's verification met the requirement that the motion for new trial be supported by affidavit, appellant failed to satisfy all necessary elements of a new trial based on newly discovered evidence. Id.
        Further, the record reveals appellant failed to established the requisite elements of a new trial based on newly discovered evidence. At the hearing on the motion, the trial court admitted two exhibits, one of which was an exhibit at trial. The other document, an assignment of the mortgage and promissory note to appellee, was dated three years before trial. Appellant offered no evidence regarding why, using due diligence, he could not have discovered this document prior to trial.
        Appellant also offered a record from the Internal Revenue Service that appellant claimed he received after trial that purportedly demonstrates appellee never owned the mortgage loan on appellant's property. The trial court excluded the document as hearsay. Appellant asserts the trial court erred by not admitting the exhibit. We review the trial court's admission or exclusion of evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam).
        Appellant first argues the document was admissible under rule of evidence 901(b)(7). Rule 901(b)(7) provides that a public record or report can be authenticated by evidence that the document is “from the public office where items of this nature are kept.” Tex. R. Evid. 901(b)(7). It is not a rule of self-authentication. See id; Tex. R. Evid. 902. Appellant, therefore, was required to offer extrinsic evidence that the document was what it purported to be. Benefield v. State ex rel. Alvin Cmty. Health Endeavor, Inc., 266 S.W.3d 25, 34 (Tex. App.-Houston [1st Dist.] 2008, no pet.). Appellant offered no evidence about the exhibit other than his unsworn statement that he received the document in the mail. The IRS document was not authenticated by either certification or any extrinsic evidence. Accordingly, appellant's argument that rule 901(b)(7) required the trial court to admit the document is without merit.
        Appellant also asserts the trial court should have taken judicial notice of the IRS document. His argument, however, is premised on the exhibit being “a self authenticated record according to Texas Rules of Evidence 901(b)(7).” We have concluded the trial court did not abuse its discretion by determining appellant failed to authenticate the document under 901(b)(7). Therefore, it also did not abuse its discretion by failing to take judicial notice of the document. See Tex. R. Evid. 201(b), (d) (party requesting court to take judicial notice of adjudicative fact must supply necessary information including that fact is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).
        Because appellant failed to offer admissible evidence of newly discovered evidence that appellant could not have discovered prior to trial using due diligence, the trial court did not abuse its discretion in denying appellant's motion for new trial based on newly discovered evidence. Further, as noted above, the trial court did not abuse its discretion in denying appellant's motion to reopen the evidence. Therefore, we overrule appellant's second issue.
        Because appellant has failed to demonstrate any error by the trial court, we affirm the trial court's judgment.
 
 
                                                          
                                                          LINDA THOMAS
                                                          CHIEF JUSTICE
080256F.P05