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Date: 06-23-2017

Case Style: NylondaJazz Sharnese v. Ultima Real Estate, Inc., et al.

Case Number: 05-15-00780-CV

Judge: Jason Boatright

Court: Texas Court of Appeals, Fifth District on appeal from the County Court at Law No. 3 of Collin County

Plaintiff's Attorney: Kelly Schuler for NylondaJazz Sharnese

Defendant's Attorney: David L. Kane for Ultima Real Estate, Inc., et al.

Description: NylondaJazz Sharnese appeals a take-nothing judgment following a bench trial in her suit against Jose Lopez, Miguel Angel Silva, and Rebecca Rodriguez. Sharnese challenges the trial court’s exclusion of evidence she tried to present at trial. She also contends the trial court erred by failing to file findings of fact and conclusions of law, granting judgment in favor of appellees, and demonstrating prejudice and bias against Sharnese during the trial and a post-trial hearing on her motion to correct the reporter’s record. We affirm the trial court’s judgment.
Sharnese contacted Marcel Counts, an apartment locator, about a condominium listed for rent. When Sharnese viewed the condominium, she asked whether certain repairs would be made. Counts contacted Jose Lopez, the condominium owner’s representative, who indicated that repairs would be made before Sharnese moved in. Sharnese filled out an application and
paid an application fee. After her application was approved, Sharnese signed the lease agreement, paid a deposit, and made a rental payment. She moved into the condominium later that day, even though repairs had not been completed and the owner, Miguel Silva, had not signed the lease.
A day or two later, Silva came by the condominium but did not complete any of the repairs Sharnese requested. Sharnese called the City of Plano Property Standards Department to complain about the condition of the condominium. The City sent an inspector to evaluate the condominium; Silva was cited for deficiencies found by the inspector. Shortly thereafter, Lopez called Sharnese to tell her that Silva did not want to lease to her and she had thirty days to move out. Lopez sent Counts a package containing a written thirty-day notice for Sharnese to vacate the premises and a check refunding amounts paid by Sharnese for the deposit and rent. Sharnese did not move out. Lopez then filed a forcible entry and detainer suit against Sharnese; judgment was granted in favor of the owner. Sharnese appealed, but ultimately moved out of the condominium.
Sharnese filed a separate lawsuit against appellees.1 In her first amended complaint, the live pleading at the time of trial, Sharnese alleged causes of action for breach of contract, retaliation, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, breach of covenant of quiet enjoyment, and harassment against all appellees, causes of action for wrongful eviction, violation of city ordinances, violation of Texas Property Code Section 92.259, unjust enrichment, unfair business practices, fraud and deceit, and promissory estoppel against appellees Silva and Lopez, and a cause of action for breach of
1 Sharnese also sued Ultima Real Estate, Inc., Illana Silva, and Does 1–20; however, those defendants were dismissed prior to trial.
fiduciary duty against appellee Lopez.
2 The trial court conducted a bench trial at which Sharnese appeared pro se. After Sharnese rested her case, defense counsel asked for judgment in favor of the appellees, arguing that Sharnese had presented no evidence to prove her case. The trial judge granted judgment in favor of the appellees. The trial court did not file findings of fact and conclusions of law despite Sharnese’s timely request and notice of past due findings. This appeal followed.
A. Evidentiary Issues
In her first three issues, Sharnese complains that the trial court erred by refusing to admit the following evidence: (1) her exhibits pertaining to damages, (2) a certified copy of the City of Plano Property Standard Department deficiencies report, and (3) a voice recording of Silva telling Sharnese that he was evicting her because she requested repairs. We review a trial court’s decision to exclude evidence under an abuse-of-discretion standard. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000). The trial court’s evidentiary ruling will be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
To challenge the trial court’s erroneous exclusion of evidence, the complaining party must present the excluded evidence to the trial court by offer of proof or bill of exception. TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.2; see also Langley v. Comm’n for Lawyer Discipline, 191 S.W.3d 913, 915 (Tex. App.—Dallas 2006, no pet.) (concluding appellant failed to preserve
2 Sharnese dismissed her claims for violation of city ordinances, unjust enrichment, negligent infliction of emotional distress, unfair business practices, and fraud prior to trial.
error when no offer of proof or bill of exception was made). However, an appellate court does not reach the question of whether evidence was erroneously excluded unless the complaint has first been preserved for review. In re Estate of Miller, 243 S.W.3d 831, 837 (Tex. App.—Dallas 2008, no pet.). To preserve error on appeal, a party must present to the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain a ruling that appears in the record. TEX. R. APP. P. 33.1(a).
Sharnese argues that documents she filed prior to trial, titled “Damages” and “Notice of Preservation of Right to Seek Punitive Damages,” constituted evidence of her damages. However, pleadings are not evidence unless offered and admitted as evidence by the trial court. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). She also argues that her evidence of damages was submitted on the day of trial, when Sharnese attempted to have all of her exhibits pre-admitted. Defense counsel objected, arguing that Sharnese still needed to lay the predicate foundation for her exhibits. The trial court deferred ruling on the admissibility of the exhibits and instructed Sharnese to offer the exhibits as needed, but Sharnese made no further attempt to introduce the document titled “Damages,” or any other exhibits pertaining to her damages, until after she had rested. Because Sharnese did not get a ruling from the trial court on the admissibility of her damages exhibits when she first attempted to offer them, and then failed to offer the exhibits again during the evidentiary portion of the trial, she failed to preserve this issue for our review. TEX. R. APP. P. 33.1(a); Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We overrule Sharnese’s first issue.
Sharnese also tried to introduce a certified copy of a letter from the City of Plano Property Standard Department into evidence. Defense counsel raised a hearsay objection, arguing that Sharnese had not laid a proper predicate. The trial court sustained the objection. In
response, Sharnese argued that the letter was not hearsay because it was a certified copy. She made no offer of proof or bill of exception with respect to the excluded letter, so she failed to preserve this issue for appeal. Langley, 191 S.W.3d at 915. We overrule Sharnese’s second issue.
During Silva’s testimony, Sharnese informed the judge that she had a voice recording of Silva that she wanted the court to hear. Defense counsel objected that Sharnese had not laid the proper foundation for admission of the record. The judge told Sharnese that she could offer the recording if she could present it in admissible form but he could not tell her how to practice law. After the trial court’s admonishment, Sharnese provided several details about the recording, and asked that it be admitted. Defense counsel again objected that a proper predicate had not been laid for admissibility, and the court sustained the objection. Sharnese made no further argument and passed the witness.
On appeal, Sharnese does not argue that she laid the proper foundation for the recording’s admissibility. Nor did she make the necessary offer of proof or bill of exception, so she failed to preserve error. We overrule her third issue.
B. Findings of Fact and Conclusions of Law
In her fourth issue, Sharnese contends the trial court reversibly erred by failing to file findings of fact and conclusions of law despite her timely request and notice of past due findings. Where, as here, the trial court fails to file findings of fact and conclusions of law of law after a proper request, the failure is error and is presumed harmful unless the record affirmatively shows the complaining party suffered no injury. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). Error is harmful if it prevents an appellant from properly presenting a case to the appellate court. TEX. R. APP. P. 44.1(a)(2); Graham Central Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). As a general rule, an appellant has been harmed if,
under the circumstances of the case, he must guess at the reason the trial court ruled against him. Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 801–02 (Tex. App.—Dallas 2006, pet. denied).
The record shows that the trial court granted judgment against Sharnese because she had finished presenting her case, and there was no evidence admitted in support of her claims:
DEFENSE: Your Honor, at this point in time we ask for judgment. There’s been no proof of damages. There’s been no proof of tenancy. There has been no proof of anything. And we ask that the Court grant judgment in favor of the defendants.
SHARNESE: Your Honor, I would like to – I submitted – that’s actually wrong, what he just said. He has a conformed copy and I submitted him a copy of the damages. And I would also like to submit my damages.
COURT: Well, you rested. And based upon everything I’ve heard, judgment will be granted in favor of the defendants. The plaintiff has a take-nothing judgment.
Sharnese did not have to guess the reason the trial court ruled against her, Willms, 190 S.W.3d at 801–02, and she was not prevented from presenting her case, TEX. R. APP. P. 44.1(a)(2). We overrule her fourth issue.
C. Factual Sufficiency
In her fifth issue, Sharnese contends that the trial court abused its discretion in granting judgment in favor of appellees, because there was factually sufficient evidence to support judgment in her favor. When a party challenges the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). We must consider and weigh all of the evidence, and can set aside a finding only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. If an
appellant offers no credible evidence on an issue where she bears the burden of proof, we must overrule her challenges to the sufficiency of the evidence supporting the judgment against her. White v. Harrison, 390 S.W.3d 666, 672 (Tex. App.—Dallas 2012, no pet.).
Sharnese had the burden to prove the element of damages for each of her causes of action, but she concedes the record contains no evidence of her damages. Having reviewed the entire record of this case, we have found no credible evidence of damages. We overrule her fifth issue.
D. Judicial Prejudice and Bias
In her sixth issue, Sharnese contends the trial judge demonstrated prejudice and bias against her throughout the trial and during a post-trial hearing, which probably caused the rendition of an improper judgment. She claims the judge helped the defendants avoid answering her questions truthfully, thus proving prejudice and bias against her and her case. She specifically complains that the trial judge answered questions posed to witnesses, interjected his own feelings, and testified repeatedly on behalf of the defendants. Her examples of objectionable comments by the judge include statements such as “answer the question yes or no if you can,” “he doesn’t know the answer to the question,” and “ask him a question he understands.”
The trial court has great discretion over the conduct of a trial, and has the authority to express itself in exercising this broad discretion. Dow Chem., 46 S.W.3d at 240. Judicial remarks during trial that are critical, disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. Expressions of impatience, dissatisfaction, annoyance, and even anger do not establish bias or partiality. Id. After carefully examining the judge’s allegedly improper comments in the context of the entire
record, we conclude there is no evidence of judicial bias. The record indicates the judge exercised his broad discretion to “maintain control and promote expedition.” Id. at 241.
Sharnese also complains that the trial judge demonstrated prejudice and bias against her in conducting an “un-noticed ex-parte hearing” regarding the accuracy of the reporter’s record. After the reporter’s record was filed with this Court, Sharnese filed a motion complaining that the record did not accurately reflect what occurred in the trial court. We granted Sharnese’s motion and ordered the trial judge to conduct a hearing and make written findings of fact as to whether the reporter’s record contained inaccuracies. The trial court scheduled a hearing, but Sharnese was unable to attend on that date. The trial court sent an email to Sharnese asking when she would be available. When several days passed without a response from Sharnese, the trial court sua sponte and without notice to the parties held a hearing. The reporter’s record from the hearing reflects the trial court noted the parties were not present and then stated: “Based upon [appellant’s] failure to respond to the notice and the request and to advise us when she could have a hearing, I’m satisfied that the transcript from the prior trial is accurate, and we are going to ask the Court of Appeals to proceed further with the appeal with the transcript as it is.” After Sharnese filed an objection, we ordered the trial court to conduct another hearing.
The trial court later conducted a hearing with both parties in attendance and went through each of Sharnese’s alleged errors or omissions. At the close of the hearing, the trial judge stated that he would listen to the recording of the trial, compare it to the transcript, and make any necessary changes. The trial court subsequently issued findings as to each of Sharnese’s alleged errors or omissions, noted any inaccuracies, and ordered the court reporter to file a corrected trial transcript consistent with the court’s findings. We adopted the trial court’s findings and a corrected reporter’s record was filed.
Sharnese contends that by conducting the initial unnoticed hearing, the trial judge “clearly demonstrated his prejudice and bias against Appellant and her case which probably caused the rendition of an improper judgment.” However, we will not reverse a judgment on the ground of improper conduct of the judge unless the complaining party shows that the judge acted improperly and that she suffered probable prejudice as a result. Rymer v. Lewis, 206 S.W.3d 732, 735–36 (Tex. App.—Dallas 2006, no pet.). Sharnese fails to show that she suffered any prejudice as a result of the judge’s conduct in proceeding with the initial unnoticed hearing. After she objected to the court’s ruling at the unnoticed hearing, a second hearing was conducted with both parties in attendance and the reporter’s record was corrected. We overrule Sharnese’s sixth issue.

Outcome: We overrule all issues and affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:


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