Steve and Sherry Gluckman, Individually and as Next Friends of Jesse Villagrana, A Minor v. Badeco, Inc.--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00107-CV
Steve and Sherry GLUCKMAN, Individually and as Next Friends of Jesse Villagrana, a Minor,
Appellants
v.
BADECO, INC.,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-12348
Honorable Karen Pozza, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 3, 2004

AFFIRMED

Appellants Steve and Sherry Gluckman filed suit against Badeco, Inc. for allegedly drilling a hole into their sewer line, causing a blockage that resulted in extensive damage to their home. The jury returned a verdict in favor of Badeco. On appeal, the Gluckmans raise two issues: 1) whether the trial court erred by excluding photographs that were not timely produced during discovery; and 2) whether the trial court erred by excluding a witness' recorded statement. We affirm the judgment of the trial court with this memorandum opinion as permitted by Tex. R. App. P. 47.4.

1. In their first issue, the Gluckmans contend the trial court erred by excluding photographs that were not timely produced during discovery. To preserve error for appellate review with regard to the exclusion of evidence, the substance of the evidence must be made known to the court by an offer of proof, or otherwise be apparent from the context of the questioning. Tex. R. Evid. 103(a)(2); Luensmann v. Zimmer-Zampese & Assoc., Inc., 103 S.W.3d 594, 597 (Tex. App.-San Antonio 2003, no pet.). The Gluckmans did not make an offer of proof at trial. However, it is apparent from the record the photographs were being offered by the Gluckmans to depict the disputed location of the manhole cover to the sewer. Therefore, we must determine whether the trial court abused its discretion by excluding the photographs.

On appeal, we review the trial court's evidentiary decisions under an abuse of discretion standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The Gluckmans do not dispute they failed to produce the photographs during the applicable discovery period. They argue that the trial court abused its discretion by excluding the photographs because good cause existed to admit them into evidence. We disagree.

Absent a showing of good cause, the failure of a party to supplement a discovery request results in the automatic exclusion of that evidence. See Morrow v. H.E.B. Inc., 714 S.W.2d 297 (Tex. 1986), citing former Tex. R. Civ. P. 215(5); see Tex. R. Civ. P. 193.6(a). The trial court has discretion to determine if good cause exists to allow the evidence. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record. Tex. R. Civ. P. 193.6(b). The Gluckmans argued good cause existed to admit the photographs into evidence because they were not on notice the photographs would be needed until Badeco's vice-president Sonny Bade testified at trial. The Gluckmans argued the photographs were necessary to impeach Bade's testimony regarding the location of the manhole cover. The trial judge reasoned the Gluckmans had ample time during the discovery period to take the photographs, and that the photographs were not necessary to impeach Bade's testimony because the Gluckmans had other testimony to do so. The Gluckmans were able to impeach Bade's testimony with portions of his videotape deposition, other photographs admitted into evidence, and the testimony of Mrs. Gluckman. We hold the trial court was within its discretion in determining that the Gluckmans failed to establish good cause and in excluding the photographs. The Gluckmans' first issue is overruled.

2. In their second issue, the Gluckmans contend that the trial court erred by excluding a recorded statement taken from Badeco employee Guadalupe Alfaro. Mr. Alfaro worked for Badeco at the time of the alleged incident, was fired, and subsequently re-hired before the Gluckmans hired a private investigator to take his statement. The private investigator learned of Alfaro's re-hiring only after he began taking Alfaro's statement. Badeco objected to the statement on the grounds that it violated Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct. (1) The Gluckmans contend the trial court abused its discretion by excluding the statement because the Texas Disciplinary Rules of Professional Conduct have no exclusionary effect. We need not decide this issue because error has not been preserved. To preserve error with regard to an excluded statement, the substance of the excluded testimony must be made known to the court through an offer of proof, or otherwise be apparent from the context of the questioning. Tex. R. Evid. 103(a)(2). Failure to make an offer of proof containing a summary of the excluded witnesses' intended testimony waives any complaint about the exclusion of the evidence on appeal. See Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.-San Antonio 2000, pet. denied). The Gluckmans did not make an offer of proof at trial as to the excluded content of Mr. Alfaro's statement and what it would have established. (2) Moreover, the substance of the evidence the Gluckmans sought to present is not apparent from the record. Their complaint is not preserved for our review. The Gluckmans' second issue is overruled. Based on the foregoing reasons, we affirm the trial court's judgment.

Catherine Stone, Justice

1. The pertinent section of Rule 4.02 provides: "In representing a client, a lawyer shall not communicate with or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." Tex. Disciplinary R. Prof'l. Conduct 4.02(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A. (Vernon 1998) (Tex. State Bar R. art. X, 9).

2. Although a transcript of Mr. Alfaro's recorded statement is in the supplemental clerk's record, there is nothing in the record to indicate the Gluckmans have preserved this error for our appellate review. The record does not contain an offer of proof summarizing the excluded portions of Mr. Alfaro's testimony, nor does the record contain a post-trial formal bill of exception. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2. In their brief, the Gluckmans point us to their motion for new trial for Mr. Alfaro's excluded statement. Attaching Alfaro's excluded testimony to the motion for new trial does not preserve the error for appellate review; however, an offer of proof must be made before the charge is read to the jury. See Tex. R. Evid. 103(b); Gibson v. Ellis, 126 S.W.3d 324, 334 (Tex. App.-Dallas 2004, no pet.) (holding that attaching evidence to a motion for new trial does not properly preserve the error).