AFFIRM and Opinion Filed June 12, 2024 

S 

In the 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-23-00017-CV 

ACCELERATED INVENTORY MANAGEMENT, LLC, Appellant 

V. 

BENJAMIN MCELROY, Appellee 

On Appeal from the 44th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-22-01519 

MEMORANDUM OPINION NUNC PRO TUNC 

Before Justices Reichek, Carlyle, and Miskel 

Opinion by Justice Carlyle 

Appellant Accelerated Inventory Management, LLC sued appellee Benjamin 

McElroy for breach of contract based on McElroy’s failure to repay a loan. On 

appeal, Accelerated argues the trial court abused its discretion when it excluded 

Accelerated’s evidence and witnesses and granted a take-nothing judgment in 

McElroy’s favor. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4. 

BACKGROUND 

Accelerated’s initial disclosures (1) identified appellee Benjamin McElroy 

and Daniel Laux, Accelerated’s representative, as people having knowledge of 
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relevant facts and (2) included a business records affidavit authenticating copies of 

the loan, payment schedule, and other documents concerning the loan. See TEX. R.

EVID. 902(10). Neither party filed mandatory pretrial disclosures. See TEX. R. CIV.

P. 194.4. 

Both parties were represented by counsel at the October 27, 2022 bench trial. 

McElroy timely objected to the introduction of any testimony based on Accelerated’s 

nondisclosure of witnesses and exhibits. See id. The trial court confirmed 

Accelerated had no witnesses available, granted McElroy’s objection, issued a takenothing judgment in his favor, and denied Accelerated’s Motion for New Trial. 

On appeal, Accelerated argues in a single issue that the trial court abused its 

discretion when it excluded Accelerated’s exhibits and witness testimony because 

(1) its exclusion amounted to a death penalty sanction; (2) Accelerated’s failure to 

file pretrial disclosures did not unfairly surprise or prejudice McElroy; and (3) Texas 

Rule of Civil Procedure 194 does not mandate the exclusion of evidence and witness 

testimony. 

STANDARD OF REVIEW 

 “We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion.” In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). “A trial court abuses 

its discretion if it acts in an arbitrary or unreasonable manner or acts without 

reference to any guiding principles.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 

1998); see also In re Alford, 645 S.W.3d 315, 316 (Tex. App.—Dallas 2022, no pet.) 
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(“An abuse of discretion occurs when a trial judge reaches a decision that is so 

arbitrary and unreasonable that it amounts to a clear error of law or violates a 

ministerial duty.”). “To determine if an abuse of discretion occurred, we must decide 

whether the trial court (1) had sufficient information upon which to exercise its 

discretion, and (2) erred in the exercise of its discretion.” Interest of J.A.A., No. 05-

22-00578-CV, 2023 WL 4944505, at *1 (Tex. App.—Dallas Aug. 3, 2023, no pet.) 

(mem. op.). 

APPLICABLE LAW 

Under the Texas Rules of Civil Procedure, parties are required to provide 

opposing parties with certain information about evidence they may present at trial, 

other than solely for impeachment purposes, at least 30 days before trial. See TEX.

R. CIV. P. 194.4. A party may not introduce material or information that was not 

timely disclosed unless the trial court finds that “(1) there was good cause for the 

failure to timely make, amend, or supplement the discovery response; or (2) the 

failure to timely make, amend, or supplement the discovery response will not 

unfairly surprise or unfairly prejudice the other parties.” TEX. R. CIV. P. 193.6(a). 

The party seeking to introduce the evidence carries the burden of establishing either 

good cause for the failure to disclose or that the failure will not unfairly surprise or 

prejudice the other party. TEX. R. CIV. P. 193.6(b). 

ANALYSIS 
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Accelerated first argues the trial court’s exclusion of its witnesses constituted 

a death penalty sanction under Texas Rule of Civil Procedure 215 and that the trial 

court abused its discretion when it levied this sanction. We disagree because the trial 

court’s ruling was not a sanction under Rule 215. 

First, the trial court’s ruling followed Texas Rule of Civil Procedure 193.6. 

Second, Accelerated did not fail to comply with an order or a discovery request; 

instead, it failed to comply with Rule 194.4. Third, Rule 193.6 contains its own 

mandatory enforcement mechanism based on a specific condition precedent. Fourth, 

there is no evidence the trial court viewed its ruling as a sanction or that it predicated 

its ruling on Rule 215. Fifth, the trial court’s ruling did not eliminate Accelerated’s 

option to request a continuance. See TEX. R. CIV. P. 193.6(c). Sixth, the trial court’s 

ruling did not eliminate Accelerated’s option to nonsuit its claims. See TEX. R. CIV.

P. 162. Thus, we conclude the trial court’s ruling was not a sanction under Texas 

Rule of Civil Procedure 215 and that even if it was, it neither adjudicated 

Accelerated’s claim nor unilaterally precluded Accelerated from presenting the 

merits of its case. See Chrysler Corp v. Blackmon, 841 S.W.2d 844, 845 (Tex. 1992). 

Accelerated also argues that the trial court abused its discretion because 

Accelerated’s failure to file pretrial disclosures did not unfairly surprise or prejudice 

McElroy. Even when we assume that the trial court erred, Accelerated has not 

preserved error. See Sink v. Sink, 364 S.W.3d 340, 346–47 (Tex. App.—Dallas 2012, 

no pet.). As a general rule, a party is required to present a timely complaint to the 
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trial court before being allowed to raise the issue on appeal. See TEX. R. APP. P.

33.1(a)(1). A timely objection is one that is made “at a point in the proceedings which 

gives the trial court the opportunity to cure any alleged error.” Crews v. Dkasi Corp., 

469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied). 

“A party may claim error in a ruling to . . . exclude evidence only if the error 

affects a substantial right of the party and . . . a party informs the court of its 

substance by an offer of proof, unless the substance was apparent from the context.” 

TEX. R. EVID. 103(a)(2); see also Sink, 364 S.W.3d at 347 (complaining party must 

offer the evidence and secure adverse ruling from the trial court). “Making an offer 

of proof enables an appellate court to determine whether the exclusion of the 

evidence was erroneous and harmful, and it allows the trial court to reconsider its 

ruling in light of the actual evidence.” Talabera v. State, No. 05-21-00613-CR, 2023 

WL 2300540, at *2 (Tex. App.—Dallas Mar. 1, 2023, no pet.) (mem. op.). 

Accelerated did not make an offer of proof or a bill of exception and the issue of 

whether the substance of its evidence is apparent from the context has not been 

briefed. See TEX. R. APP. P. 38.1(i). Under these facts, we cannot determine whether 

the exclusion of Accelerated’s evidence was harmful because there is no evidence it 

had any evidence. See Sink, 364 S.W.3d at 347. Accordingly, assuming error, we 

cannot conclude it caused the rendition of an improper judgment. See TEX. R. APP.

P. 44.1(a). 
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Finally, Accelerated argues the trial court erred when it prohibited Accelerated 

and its corporate representative from testifying because (1) McElroy was on notice 

they would testify at trial and (2) Texas Rule of Civil Procedure 193.6 excludes a 

named party from its prohibitions. Assuming Accelerated is correct on both counts, 

it nonetheless failed to demonstrate harm. See Sink, 364 S.W.3d at 346–47. 

Instead, the record affirmatively demonstrates that Accelerated had no 

witnesses available on the day of trial, the trial court was aware of that fact, and 

Accelerated nonetheless failed to argue McElroy was incorrect, offer any evidence 

of any kind, or request statutorily authorized relief. See, e.g., TEX.R.CIV. P. 193.6(c). 

Further, Accelerated has not shown its witnesses were available to be called that day 

or what those witnesses would have said if they were allowed to testify. See TEX. R.

EVID. 103(a); see also Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) 

(“Absent a showing of what such testimony would have been, or an offer of a 

statement concerning what the excluded evidence would show, nothing is presented 

for review.”) (citing Stewart v. State, 686 S.W.2d 118 (Tex. Crim. App. 1984), cert. 

denied, 474 U.S. 866 (1985)). Thus, we cannot conclude the trial court abused its 

discretion because Accelerated has not shown it was harmed. Sink, 364 S.W.3d at 

347; see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 569 (Tex. 

App.—Houston [1st Dist.] 1996, aff’d on other grounds, 972 S.W.2d 35 (Tex. 1998) 

(holding appellant could not show it was harmed by the court’s exclusion of its 
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witnesses when it failed to indicate the substance of the testimony its witnesses 

would have provided if called). 

We affirm. 

230017F.P05 

 

/Cory L. Carlyle/

CORY L. CARLYLE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT NUNC PRO TUNC 

ACCELERATED INVENTORY 

MANAGEMENT, LLC, Appellant 

No. 05-23-00017-CV V. 

BENJAMIN MCELROY, Appellee 

 On Appeal from the 44th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-22-01519. 

Opinion delivered by Justice Carlyle. 

Justices Reichek and Miskel 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee BENJAMIN MCELROY recover his costs of 

this appeal from appellant ACCELERATED INVENTORY MANAGEMENT, 

LLC. 

Judgment entered June 12, 2024.