Glenn E. Gallaher v. Gena Brown ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-07-148-CV
GLENN E. GALLAHER APPELLANT
V.
GENA BROWN APPELLEE
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In two points, Appellant Glenn Gallaher argues that the trial court erred
by denying his motion for new trial because Appellee Gena Brown mentioned
at trial a previously undisclosed witness only to prejudice the jury and because
Appellee mentioned at trial Appellant’s previous car accidents in violation of the
trial court’s order on Appellant’s motion in limine. Because we hold that the
1
… See T EX. R. A PP. P. 47.4.
trial court did not abuse its discretion by denying Appellant’s motion for new
trial, we affirm the trial court’s judgment.
F ACTS AND P ROCEDURAL H ISTORY
On November 29, 2005, Appellant filed suit against Appellee and her
insurance carrier, State Farm Mutual Automobile Insurance Company, for
damages arising out of a car accident between Appellant and Appellee. He
alleged that on December 4, 2003, Appellee changed lanes while turning left
at an intersection and struck his car, pushing it into the median. Appellant
claimed injuries resulting from the accident and sought damages for reasonable
medical expenses, lost wages, and damage to his credit report due to
nonpayment of medical expenses. He alleged that State Farm had failed to pay
for all the damages to his vehicle, causing him mental anguish, monetary
damages, and harm to his credit. State Farm filed a plea to the jurisdiction on
standing grounds, which the trial court granted.
The case went to trial on Appellant’s claims against Appellee. Appellant
filed a motion in limine seeking to exclude testimony that he had “been involved
in any unrelated prior claims, wrecks, suits, settlements, workers’
compensation cases, and the amount thereof.” Because Appellant claimed
medical expenses for treatment of a back injury resulting from his car accident
with Appellee, the trial court allowed Appellee to introduce evidence that he
2
had been involved in a prior accident that he had previously claimed had injured
his back. The trial court granted Appellant’s motion as to other accidents that
Appellant had been involved in.
The jury found that the negligence of both Appellant and Appellee caused
the accident, attributing seventy-five percent of fault to Appellee and twenty-
five percent to Appellant. The jury awarded Appellant damages of $150.00 for
past medical expenses. Appellee filed a motion for judgment on the verdict in
which she claimed a credit of $4,133.59 for the amount State Farm had
previously paid to Appellant. The trial court entered a final judgment
acknowledging application of the credit and ordering that Appellant take
nothing.
Appellant filed a motion for new trial based on grounds of newly
discovered evidence and of Appellee’s violation of the trial court’s order on the
motion in limine. The trial court denied the motion, and Appellant filed this
appeal.
S TANDARD OF R EVIEW
We review for an abuse of discretion a trial court’s decision on a motion
for new trial.2 To determine whether a trial court abused its discretion, we
2
… In re R.R., 209 S.W.3d 112, 114 (Tex. 2006); Champion Int'l Corp.
v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig.
3
must decide whether the trial court acted without reference to any guiding rules
or principles; in other words, we must decide whether the act was arbitrary or
unreasonable.3 Merely because a trial court may decide a matter within its
discretion in a different manner than an appellate court would in a similar
circumstance does not demonstrate that an abuse of discretion has occurred.4
A NALYSIS
Appellant brings two points on appeal. Appellant’s first point is that
“[f]or the first time in the course of this lawsuit, during trial [Appellee]
mentioned a witness that had not been identified in discovery as a person with
relevant knowledge. The witness was only mentioned to prejudice the jury and
for trial by ambush.” He characterizes this testimony as newly discovered
evidence warranting a new trial.
At trial, Appellee testified that at the scene of the accident, Appellant
began screaming at her. Her attorney then elicited the following testimony:
[Appellee’s attorney]: Now, as -- as [Appellant] continued to
scream and curse at you, did he finally stop when a friend of yours
proceeding).
…
3
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985), cert. denied, 476 U.S. 1159 (1986).
4
… Id.
4
who was a male that was following you to the Christmas party
came up?
[Appellee]: Yeah, he pulled his car up behind mine in the median
and got out and walked up because he saw his behavior, and as
soon as he came up, he stopped.
Appellant argues that Appellee’s “male friend” was a person with relevant
knowledge whom Appellee had failed to disclose and that Appellee therefore
was not entitled to produce evidence mentioning this friend. Appellant
contended that, because of this testimony, the trial court should have granted
him a new trial. Appellee counters that the testimony showed that this friend
did not arrive at the scene until after the accident had occurred and therefore
was not a person with relevant knowledge as to liability or as to Appellant’s
medical injuries. Appellee further argues that Appellant has not shown how the
failure to identify the friend probably caused an improper verdict.
We hold that Appellant has not preserved this argument for review
because he did not object in the trial court when this testimony was
introduced. 5 Further, we note that any error in the admission of this testimony
5
… See One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d
673, 677 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (stating that to
preserve error when allegedly inadmissible evidence is put before the jury, a
party must pursue an adverse ruling from the trial court, and absent such an
adverse ruling, “nothing is preserved for appellate review”); see also T EX. R.
A PP. P. 33.1(a).
5
was harmless because Appellant conceded in his closing argument that he
yelled at Appellee, and Appellant has made no showing of what information he
would have obtained from Appellee’s friend or how the testimony of the
existence of this person probably caused the rendition of an improper verdict. 6
We overrule Appellant’s first point.
In his second point, Appellant argues that the trial court abused its
discretion by failing to grant a new trial because Appellee violated the court’s
order on his motion in limine by asking Appellant about car accidents in which
he had previously been involved other than the accident in which he had
previously injured his back. A motion in limine preserves nothing for review.7
A party who wishes to complain on appeal about a violation of a motion in
limine must object when the testimony that is the subject of the motion is
6
… See T EX. R. A PP. P. 44.1(a) (stating that no judgment may be reversed
on appeal for trial court error unless the error probably caused the rendition of
an improper judgment or probably prevented the appellant from properly
presenting the case to the court of appeals); see also Smith v. Levine, 911
S.W.2d 427, 433 (Tex. App.—San Antonio 1995, writ denied) (noting rule that
a party seeking new trial based on newly discovered evidence “must bring
forward non-cumulative evidence of which the movant did not become aware,
and could not with the exercise of diligence have become aware, until after
trial, and this newly-discovered evidence must be so material that it would
probably produce a different result”).
…
7
In re R.V., Jr., 977 S.W.2d 777, 780 (Tex. App.—Fort Worth 1998, no
pet.).
6
offered at trial.8 The party must further ask the court to instruct the jury to
disregard the objectionable testimony and move for a mistrial. 9
During trial, Appellee’s attorney twice raised the issue of prior accidents.
In one instance, he questioned Appellant about whether he had injured his back
in a car accident in 1994. That line of questioning did not violate the trial
court’s order on the motion in limine. Appellee’s attorney also asked Appellant
about an accident when questioning him about his cutting off Appellant after
she had hit his car. Appellee’s attorney asked, “Now, the truth of the matter
is you—you did that because you were in another accident where a hit-and-run
driver hit you in that same car; isn’t that true?” Appellant objected that the
evidence had no relevance and was prejudicial. The trial court sustained
Appellant’s objection.
Appellant received from the trial court all the relief that he requested.
Because Appellant did not pursue an adverse ruling from the trial court, he has
not preserved this issue for review. 10
…
8
Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91 (Tex.
App.—Houston [14th Dist.] 2004, no pet.).
9
… T EX. R. A PP. P. 33.1(a); T EX. R. E VID. 103; State Bar of Tex. v. Evans,
774 S.W.2d 656, 658 n.6 (Tex. 1989).
10
… See One Call Sys., Inc., 936 S.W.2d at 677; see also Patir v. MFC
Int’l Corp., 60 S.W.3d 355, 357 (Tex. App.—Houston [1st Dist.] 2001, no
7
Appellant contends that the error was not curable by an instruction to
disregard. To show grounds for a new trial based on an improper question
where a party did not receive an unfavorable ruling, the party must establish the
same factors as would be required to show reversible error because of an
improper jury argument,11 and a party arguing that an improper question created
incurable harm has the burden to prove that the question was not curable by
an instruction, a prompt withdrawal of the statement, or a reprimand by the
judge.12 But Appellant does not demonstrate or explain why the question of
pet.) (holding that a party must pursue an adverse ruling to preserve error in the
admission of testimony).
11
… See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 120
(Tex. 1984) (stating that the standard for showing reversible error based on
allegedly improper jury argument also applies when allegedly improper
questioning of a witness occurs); Standard Fire Ins. Co. v. Reese, 584 S.W.2d
835, 839-40 (Tex. 1979) (holding that (1) a party arguing reversible error based
on improper jury argument must demonstrate that an uninvited, preserved error
occurred that was not curable by an instruction, a prompt withdrawal of the
statement, or a reprimand by the judge and that the argument by its nature,
degree and extent constituted reversibly harmful error, (2) that all of the
evidence must be closely examined to determine the argument’s probable effect
on a material finding, and (3) a reversal must come from an evaluation of the
whole case).
12
… See Tex. Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 245, 266
S.W .2d 856, 858 (1954) (holding that only when the probable harm or the
resulting prejudice caused by an improper argument cannot be eliminated by
retraction or instruction will a new trial will be awarded in the absence of
timely, overruled objection and that “argument which is improper only because
its nature is calculated to inflame the minds and arouse the passion of prejudice
of jurors is usually regarded as being of the ‘curable’ type”); see also Reese,
8
Appellee’s attorney was incurable, or how, in the context of the entire record,
the question constituted reversibly harmful error. The jury was allowed to hear
that Appellant had been in at least one other car accident because Appellee was
permitted to question him about his 1994 car accident that injured his back.
There was nothing to suggest to the jury that the hit-and-run accident and this
1994 accident were not one and the same, and in any case, Appellant does not
explain why the jury’s learning of one other car accident involving him was not
likely to inflame the jury, but learning of two car accidents was. In fact, he
does not offer any argument at all as to how the question probably resulted in
the rendition of an improper verdict. The cases cited by Appellant set out the
standard for reviewing error in cases in which improper jury argument or jury
questioning takes place, but they do not lend support for Appellant’s argument
that the question in this case resulted in incurable error. 13 Because Appellant
584 S.W.2d at 839-40.
13
… See Geuder v. State, 115 S.W.3d 11, 13-15 (Tex. Crim. App. 2003)
(stating that “to preserve error, an objection must be timely, specific, [and]
pursued to an adverse ruling,” and that a motion in limine preserves nothing for
review and holding that the appellant had preserved his complaint because the
trial court overruled his objection to admitted evidence); Westmoreland v. State,
174 S.W.3d 282, 290-91 (Tex. App.—Tyler 2005, pet. ref’d) (holding that the
trial court did not err when it did not grant a mistrial after a witness violated a
motion in limine because the appellant objected when the testimony was
admitted at trial, the trial court sustained the objection and gave an instruction
to disregard, and the appellant did not request a mistrial because of the
9
has not shown that Appellee’s question was incurable error and because he did
not pursue an unfavorable ruling by the trial court, we overrule Appellant’s
second point.
C ONCLUSION
Having overruled both of Appellant’s points, we affirm the trial court’s
denial of Appellant’s motion for new trial.
PER CURIAM
PANEL F: DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.
DELIVERED: April 17, 2008
testimony and thus received all the relief he requested); Williams v. Gen. Motors
Acceptance Corp., 428 S.W.2d 441, 447 (Tex. Civ. App.—San Antonio 1968,
no writ) (holding that generally, in order to be entitled to a new trial because of
improper jury argument, a party must show that the party objected when the
argument was made and that the trial court overruled the objection, and absent
such an objection a new trial will be awarded only if the probable harm resulting
from the argument cannot be cured by a retraction or an instruction).
10