Fletcher Aviation, Inc. v. Ted Booher Individually, and d/b/a Rapid Environmental Services--Appeal from 61st District Court of Harris County

Affirmed and Memorandum Opinion filed May 26, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00712-CV

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FLETCHER AVIATION, INC., Appellant

V.

TED BOOHER, Individually and d/b/a RAPID ENVIRONMENTAL SERVICES, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 02-60546

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment entered after a bench trial in a breach of contract action. Appellant raises one issue, complaining of the trial court=s refusal to allow its expert to testify, or alternatively, to grant a continuance so that appellee could depose appellant=s expert. We affirm.

Appellee sued appellant for unpaid charges he had billed appellant for an emergency environmental response fuel spill clean-up and disposal of contaminated material. Although appellant=s representative did not appear at trial, its counsel attended. On the day of trial, the trial court heard and denied appellant=s motion for late designation of its expert witness. At the conclusion of the trial, the court entered judgment for appellee in the amount of $18,000. The trial court filed findings of fact and conclusions of law. The appeal is before the court without a reporter=s record from the trial.[1]

Appellant asserts that in the absence of any request for disclosure pursuant to Texas Rule of Civil Procedure 194.2 or a deadline for designation of experts in the trial court=s docket control order, its designation of its expert the day before trial was timely.[2] Accordingly, appellant claims the trial court abused its discretion in barring the expert=s testimony. The trial court made a finding of fact that it denied appellant=s motion, but stated no grounds or legal conclusions for its denial.

The admission or exclusion of evidence is a matter within the trial court=s discretion. Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). To reverse a judgment based on error in the admission or exclusion of evidence, we must conclude that the error probably caused the rendition of an improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). To make this determination, we review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted or excluded. Id. Thus, we will not reverse a judgment for an erroneous ruling if the evidence in question is cumulative. Interstate, 66 S.W.3d at 220; see also GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex.1999) (holding erroneous admission of expert testimony harmless, as it was cumulative of other proper testimony regarding harassment).

According to the trial court=s findings of fact, the hearing on appellant=s motion consisted only of the argument of counsel. Ordinarily, when the trial court hears no evidence, but expressly bases its decision on papers filed and the argument of counsel, an appellant is not required to obtain a transcription of the hearing. See Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993). However, before we may reach the question of whether evidence was erroneously excluded, the complaint first must have been properly preserved for review. See McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 187 (Tex. 1984). To challenge a ruling excluding evidence, appellant must make an offer of proof setting forth the substance of the excluded evidence. In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

Thus, on the record before this court, appellant has failed to establish it preserved its complaint. Moreover, even if the complaint had been properly preserved, and if we concluded the exclusion was erroneous, we would be unable to perform a harm analysis in the absence of a complete record.

We hold that in the absence of a reporter=s record, appellant cannot establish that the trial court abused its discretion in excluding its expert=s testimony. Accordingly, we overrule appellant=s issue.

In conclusion, we affirm the trial court=s judgment.

PER CURIAM

Memorandum Opinion filed May 26, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

[1] The court reporter who reported the trial informed this court that appellant did not request, or make arrangements to pay for, preparation of the reporter=s record. Accordingly, this court notified appellant that unless it made arrangements to pay for the record within fifteen days of the date of the notice, the court would consider and decide those issues that do not require a reporter=s record. See Tex. R. App. P. 37.3(c). Appellant did not respond to the court=s notice. Appellant then filed its brief without a reporter=s record.

[2] The motion for late designation of expert and the docket control order are not part of the appellate record. Appellant has attached to its brief a copy of a letter addressed to the Harris County District Clerk requesting supplementation of the record, and attaching copies of the omitted documents. See Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (refusing to consider attachment of document as exhibit or appendix to brief because it did not constitute formal inclusion in record on appeal). The District Clerk=s office informed this court it never received a request for supplementation. Appellant also did not request this court to order supplementation of the clerk=s record.