Brandon Gardner v. Texas Disposal Systems, Inc. ( 2020 )

Affirmed and Memorandum Opinion filed March 10, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00688-CV
BRANDON GARDNER, Appellant
V.
TEXAS DISPOSAL SYSTEMS, INC., Appellee
On Appeal from the 419th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-16-003247
MEMORANDUM OPINION
Brandon Gardner appeals the judgment which, in accordance with the jury’s
verdict, awarded him $1.1 million for the wrongful death of his daughter Bre’in
Gardner. According to Brandon,1 the trial court reversibly erred in excluding
evidence that Bre’in’s mother, co-plaintiff Leah Bullock, was biased against him
because (a) she received a large settlement from the defendant, and (b) she had
1
Because they share a family name, we refer to Bre’in and Brandon by their given names.
unrequited romantic feelings for Brandon. Because Brandon did not preserve these
alleged errors for review, we overrule the sole issue presented and we affirm the trial
court’s judgment.
I. BACKGROUND
Carl Weige, an employee of Texas Disposal Systems, Inc. (“TDS”),
negligently drove a TDS truck with the truck’s hoist or “boom” elevated. The boom
struck a bridge, which collapsed onto Leah Bullock’s car, injuring her and killing
her twelve-year-old daughter Bre’in Gardner, who was a passenger in the vehicle.
Bullock’s two other minor children were uninjured bystanders to the accident.
Bre’in’s father Brandon sued TDS to recover damages as a statutory
wrongful-death beneficiary. Bullock, acting individually, as next friend of her
surviving minor children, and as representative of Bre’in’s estate, sued TDS and
Weige in a separate suit that was consolidated into Brandon’s suit. After Bullock
settled and then nonsuited her claims in all of her capacities, TDS stipulated to its
liability to Brandon.
The case proceeded to a jury trial solely on the issue of Brandon’s
compensatory damages. The jury assessed damages totaling $1.1 million for
Brandon’s past and future mental anguish and for his past and future loss of Bre’in’s
companionship and society. The trial court rendered judgment on the verdict and
denied Brandon’s motion for new trial.
On appeal, Brandon asks that we reverse the judgment and remand the case.
According to Brandon, the trial court reversibly erred in excluding (a) evidence of
the total amount for which Bullock settled all of the claims she asserted, and
(b) evidence that Bullock had “unrequited romantic feelings” for Brandon.
2
II. ANALYSIS
With rare exceptions inapplicable here, for a party to present a complaint to
the appellate court for review, the record must show that (1) the complaint was
presented to the trial court by a timely request, objection, or motion, complying with
the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) either the trial court ruled on the request, objection, or motion, or the complaining
party objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a). To preserve
a complaint that the trial court erroneously excluded evidence, the error must affect
a substantial right of the complaining party, who must inform the court of the
evidence’s substance by an offer of proof, unless the substance was apparent from
the context. TEX. R. EVID. P. 103(a)(2).
For the reasons discussed below, we conclude that Brandon failed to preserve
complaints that the trial court erroneously excluded evidence of the amount for
which TDS settled Bullock’s claims and of Bullock’s allegedly unrequited romantic
interest in Brandon.2
A. Excluded Evidence of Leah Bullock’s Settlement Amount
In its pre-trial motion in limine, TDS asked the trial court to order all attorneys
and witnesses not to attempt to convey certain matters to the jury “without first
obtaining permission of the Court outside the presence and hearing of the jury.”
Among other requests, TDS asked the trial court to order litigants to obtain the
court’s permission outside the jury’s presence before referring to, or offering
evidence of, the amount of Bullock’s settlement. TDS argued in its motion that the
amount of the settlement (a) is the subject of a confidentiality agreement; and (b) is
2
Because the case was transferred to us from the Third Court of Appeals in Austin, we
apply that court’s precedent to the extent of any conflict with our own precedent. See TEX. R. APP.
P. 41.3.
3
irrelevant, or if relevant, the danger of confusing the issues or misleading the jury
substantially outweighs the probative value of such evidence.3
Brandon responded that the amount of Bullock’s settlement “goes directly to
the weight and credibility of her testimony and her bias.” Brandon also asserted,
“The Court is well aware how much money she got. . . . She got well over [x]
dollars.4 The Court knows this.”
The trial court granted the part of TDS’s motion in limine concerning
references to the amount of TDS’s settlement with Bullock. Brandon did not attempt
to introduce evidence of the settlement amount during the trial, and he did not make
an offer of proof of such evidence.
The ruling on the motion in limine did not preserve error. A motion in limine’s
purpose “‘is to prevent the asking of prejudicial questions and the making of
prejudicial statements in the presence of the jury’ without seeking the trial court’s
permission.” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015)
(per curiam) (quoting Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d
331, 335 (Tex. 1963)). Because a motion in limine “does not seek a ruling on
admissibility,” it does not preserve error for appellate review. Id. Although the trial
court can render a pretrial order excluding evidence, the order on TDS’s motion in
limine did not do so. Instead, the order specifically states, “It is ORDERED that all
attorneys and all witnesses not mention, refer to, or attempt to convey to the jury in
any manner, either directly or indirectly, any of the below matters without first
obtaining permission of the Court outside the presence and hearing of the jury.”
3
See TEX. R. EVID. 403.
4
The number stated is said to be the subject of a confidentiality agreement, and in any
event, the number is immaterial to the question of whether error was preserved.
4
Brandon therefore was required to follow the usual process to preserve a
complaint that the trial court erroneously excluded evidence. A complaining party
generally must (1) attempt to introduce the evidence during the evidentiary portion
of the trial, (2) respond to any objections by identifying the purpose for which the
evidence is offered and explaining why the evidence is admissible for that purpose,
(3) obtain an adverse ruling from the trial court, and (4) “make a record of the precise
evidence the party desires admitted.” Tex. Prop. & Cas. Guar. Ass’n v. Nat’l Am.
Ins. Co., 208 S.W.3d 523, 546 (Tex. App.—Austin 2006, pet. denied); see also In re
N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)
(“[A]n offer of proof must show the nature of the evidence specifically enough so
that the reviewing court can determine its admissibility.”). Brandon did not attempt
to introduce evidence of the settlement amount during trial, obtain an adverse ruling,
or make a record of the specific evidence he wanted admitted.
B. Excluded Evidence of Unrequited Romantic Interest
Regarding Bullock’s allegedly unrequited romantic interest in Brandon, the
only evidence Brandon cites is drawn from Bullock’s post-settlement deposition.
Bullock did not testify live at trial, and both sides designated excerpts from the
deposition to be played for the jury. But, based on the trial court’s ruling on the
motion in limine, Brandon’s counsel Christopher Leavitt withdrew from his offer
the portions of Bullock’s deposition pertaining to her alleged interest in Brandon:
MR. LEAVITT: My understanding is that the motion in limine
indicated the relationship between Brandon and Leah, uh, we should
avoid talking about that. To the extent -- and based on that, I have just,
wholesale, tried to remove as much of it as I could. There are still some
things that they [TDS’s attorneys] think are relevant. I’ll allow them to
explain it to the Court. Now, I have taken out everything with the
anticipation that that’s how the Court is going to rule.
5
In the event that the Court does let some of this in, we have
identified and it’s probably four discrete excerpts that we think we
should be able to bring up in our counter.
THE COURT: Let’s -- let’s begin, first, with -- direct me to the
Plaintiff’s motion in limine that discussed the relationship between Ms.
Bullock and the plaintiff.
MR. LEAVITT: Uh...
THE COURT: I see a couple related to Ms. Bullock.
MR. LEAVITT: Yeah, and I don’t have that -- if -- I don’t know. I
don’t have the motion in limine in front of me judge, but it was more of
-- some direction from the court, um, that as it relates to the children,
um, it’s fine, and I believe they may even have the transcript. To the
extent it doesn’t involve the children, not--
THE COURT: Not going to be relevant.
MR. LEAVITT: Not fine.
THE COURT: Just -- I gave you some guidance about where I will
likely come out and I will rule on relevance.
MR. LEAVITT: This is what you’re about to hear a lot of testimony
and text messages that, um, you know, I -- I -- I love you. I -- you know,
etcetera, etcetera, those kind of things. They get into their personal
relationship which we have withdrawn our cuts from based on the
Court’s ruling and court’s direction. Some of that they are still
interested in putting in, to the extent the Court lets them in, I may have
to come back and say, Judge, based on that, we do need to show bias
and we’ve identified three or four very short, um, discrete excerpts on
that.
THE COURT: Okay.5
5
Emphasis added. Statements in the future tense such as whether evidence is “going to”
be relevant or how the trial court “will likely come out” or “will rule” are not themselves rulings.
See Mem’l Hermann Health Sys. v. Heinzen, 584 S.W.3d 902, 908–09 (Tex. App.—Houston [14th
Dist.] 2019, no pet.).
6
The parties then conferred, and neither side offered into evidence any of the
deposition excerpts that Brandon characterizes on appeal as erroneously excluded.6
Thus, there is nothing for us to review.
III. CONCLUSION
Because Brandon did not preserve the evidentiary complaints raised on
appeal, we overrule the sole issue presented and we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
6
For the parties’ reference, the deposition testimony that Brandon characterizes as
excluded evidence, and the corresponding pages in the reporter’s record showing the withdrawal
of the offer, are as follows: (a) the excerpt from deposition page 82 was withdrawn at 6 RR 217–
18; (b) the excerpt from deposition page 93 was withdrawn at 6 RR 224; (c) the excerpt from
deposition page 104 was withdrawn at 6 RR 238; (d) the excerpts from deposition pages 108, 112,
and 113 were withdrawn at 6 RR 239; (e) the excerpt from deposition pages 118, 122, and 123
were withdrawn at 6 RR 240; and (f) the excerpt from deposition page 129 was withdrawn at 6 RR
243–44.
7