Opinion issued December 19, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-01116-CV
                           ———————————
           DIANE SMITH AND JOHN FERNANDEZ, Appellants
                                       V.
                    HOUSTON DIRECT AUTO, Appellee


            On Appeal from the County Civil Court at Law No. 3
                          Harris County, Texas
                      Trial Court Case No. 1107901


                         MEMORANDUM OPINION

      Appellants, Diane Smith and John Fernandez, appeal from the trial court’s

take-nothing judgment against them in their suit against appellee, Houston Direct

Auto, for breach of contract and negligence. We liberally construe the complaints
in appellants’ pro se brief as a challenge to the legal sufficiency of the evidence

supporting the trial court’s judgment.1

      We affirm.

                                      Background

      Appellants alleged in their original petition that they purchased a car from

appellee and that appellee agreed to make certain repairs to the car before delivery.

Appellants alleged that appellee failed to make repairs as agreed. Appellants further

alleged that the car was damaged while in appellee’s possession for repairs. To their

petition, appellants attached receipts for various repairs to a 2007 Mercedes S550.

      On October 10, 2018, appellee filed and served on appellants an answer,

generally denying appellants’ claims and specifically denying the alleged

representations. Appellee noted that appellants had purchased the car at issue “as

is” and that appellants had executed a “Notice of Vehicle Sold Without Any

Warranty.” In its answer, appellee included requests for disclosure, as follows:

      Under Rule(s) 190 and 194 of the Texas Rules of Civil Procedure,
      [appellee] requests that [appellants] disclose, within thirty (30) days of
      the service of this request, the information or material described in Rule
      194.2 (a), (b), (c), (d), (e), (f), (g), (h), (i), and (1) as well as Rule
      190.2(b)(6) which requires the disclosure of all documents, electronic
      information, and tangible items that [appellants have] in [their]
      possession, custody, or control and may use to support [their] claims.


1
      See Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex. App.—Houston [1st Dist.] 2006,
      no pet.) (construing challenge to trial court’s decision as challenge to sufficiency of
      evidence).

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      The request for disclosure under Rule 190.2(b)(6) of the Texas Rules
      of Civil Procedure is not considered a request for production.

      Appellants filed a response stating, “I am aware that both cars [sic] were

bought as is and with no warranty.” They asserted, however, that “things were not

repaired correctly” and that some of the damages occurred “after purchase.”

      At trial on December 11, 2018, appellee objected to appellants presenting any

evidence, beyond that attached to their petition, on the ground that appellants had

failed to respond to appellee’s requests for disclosure.2 Fernandez explained to the

trial court that his mother had responded on his behalf by email. He was, however,

unable to provide the trial court with any evidence of such response. The trial court

took a recess and directed the parties to search for the email. After the search was

unsuccessful, the trial court sustained appellee’s objection, ruling that the exclusion

of appellants’ evidence was mandatory under the Rules of Civil Procedure. Appellee

then moved for a take-nothing judgment against appellants, which the trial court

granted.

                         Legal Sufficiency of the Evidence

A.    Standard of Review and Legal Principles

      In a nonjury trial, when no findings of fact or conclusions of law are filed, as

here, we imply that the trial court made all necessary findings to support its



2
      See TEX. R. CIV. P. 193.6.
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judgment. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.

2002). When a reporter’s record is filed, as here, the implied findings are not

conclusive, and a party may challenge the sufficiency of the evidence. Id. A party

challenging the legal sufficiency of an adverse finding on which he had the burden

of proof at trial must demonstrate that the evidence conclusively establishes, as a

matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001). We indulge every reasonable inference to support the

finding, crediting favorable evidence if a reasonable factfinder could and

disregarding contrary evidence unless a reasonable factfinder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005). We affirm the trial court’s

judgment if it can be upheld on any legal theory finding support in the evidence.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

      To prevail on their breach-of-contract claim, appellants were required to

establish (1) a valid contract to repair the car, (2) appellants’ performance or

tendered performance of their obligations, (3) appellee’s breach of the agreement,

and (4) resulting damages. See N.&W. Ins. Co. v. Sentinel Inv. Grp., LLC, 419

S.W.3d 534, 539 (Tex. App.—Houston [1st Dist.] 2013, no pet.). To prevail on their

negligence claim, appellants were required to establish (1) the existence of a duty to

repair the car, (2) a breach of that duty, and (3) damages proximately caused by the

breach. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).


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B.    Analysis

      We note that the Texas Rules of Civil Procedure provide, in pertinent part,

that a party who fails to timely respond to discovery “may not introduce in evidence

the material or information that was not timely disclosed, or offer the testimony of a

witness (other than a named party) who was not timely identified,” unless the court

finds that: (1) there was good cause for the failure to timely respond or (2) the failure

to timely respond will not unfairly surprise or unfairly prejudice the other parties.

TEX. R. CIV. P. 193.6(a). The burden of establishing good cause or the lack of unfair

surprise or unfair prejudice is on the party seeking to introduce the evidence or call

the witness. Id. 193.6(b). Unless one of its exceptions apply, this exclusionary rule

is mandatory and automatic. See id.; Santana v. Santana, No. 02-15-00140-CV,

2016 WL 278781, at *2 (Tex. App.—Fort Worth Jan. 21, 2016, no pet.) (mem. op.).

      Here, the record does not show that appellants responded to appellee’s

requests for disclosure. See TEX. R. CIV. P. 190.2(b); 194.2. On appeal, appellants

do not challenge the trial court’s exclusion of their evidence at trial. See id. 193.6(a).

      Even if the trial court considered the receipts attached to appellants’ petition,

there is no evidence in the record of other elements of appellants’ breach-of-contract

or negligence claims, such as the existence of a valid contract to provide repairs or

a duty to repair. See N.&W. Ins. Co., 419 S.W.3d at 539; W. Invs., Inc., 162 S.W.3d




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at 550. Accordingly, we hold that the trial court did not err in rendering judgment

that appellants take nothing on their claims.

      We overrule appellants’ sole issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.




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