Court of Appeals of Texas,

Corpus Christi–Edinburg.

Claude W. STRAUB, Jr., Donna M. Straub, Individually, and as Next Friend of Her Minor Children, Clinton Straub and Craig Straub

v.

GENCOM HOSPITALITY, INC., et al.

No. 13–97–114–CV.

|

Aug. 20, 1998.

Attorneys & Firms

William R. Edwards III, William R. Edwards and John Blaise Gsanger, for Claude W. Straub, Jr. and Donna M. Straub.

G. Don Schauer and William O. Ashcraft, for Gencom Hospitality, Inc., et al.

Michael Phillips, Evelyn T. Ailts and Hal George for Pinkerton, Inc.

Levi James Benton and Brock C. Akers, for Pinkerton.

Before Chief Justice SEERDEN and Justices YANEZ and CHAVEZ.

OPINION

Opinion by Justice CHAVEZ.

*1 Appellants Claude W. Straub, Jr., and Donna M. Straub, individually and as next friend of her minor children, Clinton Straub and Craig Straub, bring this appeal from a jury verdict in favor of Pinkerton’s Inc. By four points of error, appellants complain of motion in limine violations, injection of insurance into the record, insufficient evidence to support the judgment, and cumulative error. We affirm the trial court’s judgment.

Before discussing the merits of this appeal, we must address Donna Straub’s individual and representative participation in this appeal. Originally, Claude and Donna Straub’s cases were filed separately in two different courts. Both cases were consolidated a few weeks before the trial. The defendants in the consolidated case were Gencom American Hospitality (Gencom), Holiday Inn, Leasing Services, Inc. (LSI), and Pinkerton’s Inc. (Pinkerton). Prior to trial, both Claude and Donna Straub entered into a settlement agreement with Gencom and Holiday Inn, non-suited LSI, and additionally, Donna Straub non-suited Pinkerton. Therefore, the only three participants at trial were Claude Straub, Jr., who maintained a cause of action against Pinkerton, and Gencom who alleged a common-law indemnity cause of action against Pinkerton. The record in this case and the trial court’s final judgment reflect these facts. Because of Donna Straub’s non-suit as to Pinkerton, she was not a party at trial, and despite the fact that she has perfected an appeal to this Court and is mentioned as a party in appellant’s brief, we overrule all of the points of error raised by her individually and as next friend of her minor children, Clinton Straub and Craig Straub. We do, however, address the points of error raised by Claude Straub, Jr., and our opinion will refer to him as the sole appellant.

Claude Straub, Jr. (Straub), and a female companion rented a room on January 23, 1993 at a Holiday Inn motel in Houston. The motel roof was under repair at the time. Near 11:00 p.m., a storm blew in with high winds, prompting Straub to go into the parking lot to check on his motorcycle. While outside, a 4′ x 8′ piece of roofing material flew off of the roof and struck Straub in the head, rendering him temporarily unconscious. A Pinkerton security guard and an off-duty motel employee assisted Straub as he regained consciousness and returned him to his room. An ambulance was called and Straub was taken to a hospital where he was diagnosed with head injuries and partial memory loss. Thereafter, Straub filed this lawsuit as discussed above.

Motion In limine

Straub’s first point of error complains of Pinkerton’s repeated violations of his motion in limine through incurable jury argument and other means which caused the rendition of an improper judgment. The trial court, in ruling on Straub’s motion in limine, prohibited references or evidence pertaining to specific issues considered irrelevant or highly prejudicial, and required all parties to approach the bench prior to discussing them during trial. These issues included:

*2 1. reasons for termination of four motel employees and reprimand of a manager;

2. Straub’s settlement with Holiday Inn and Gencom;

3. disclosure of Straub’s wealth;

4. references to tort reform and lawsuit abuse;

5. Straub’s personal habits prior to the incident;

6. Donna Straub’s filing for divorce;

7. any reference that Straub was being punished by God or anyone else for his infidelity at the motel; and

8. Straub’s motion in limine.

Straub complains that Pinkerton blatantly violated the motion in limine by making references to all of these issues. In response, Pinkerton argues that Straub failed to preserve error.

A motion in limine does not preserve any issue for appellate review. To preserve error as to an improper question asked in contravention of a sustained motion in limine, a timely objection is necessary. Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.1986); see Tex.R.App. P. 33.1(a); Tex.R. Evid. 103(a)(1). Otherwise, a trial court is denied the opportunity to make a curative instruction or mistrial ruling. Pool, 715 S.W.2d at 637. Where a trial court’s order on a motion in limine is violated, we review the violations to see if they are curable by instructions to the jury to disregard them. Dove v. Director, State Employees Workers’ Compensation Div., 857 S.W.2d 577, 580 (Tex.App.-Houston [1st Dist.] 1993, writ denied). An argument is curable when the harmful effect of the argument can be eliminated by a trial judge’s instruction to the jury to disregard what they have just heard. Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex.1968). An argument is incurable when it is so inflammatory that its harmfulness could not be eliminated by an instruction to the jury to disregard it, and in such cases, failure to object does not constitute waiver. Id. However, there are only rare instances of incurable harm from improper argument. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979).

Straub complains of two instances in which Pinkerton violated the motion in limine regarding terminations and reprimands of motel employees. The first violation occurred during Pinkerton’s opening statement when counsel stated, “Tim Walther [motel manager] had a duty to walk around the premises outside to check for wind and other things like this. He didn’t do it, he never did it. He had been reprimanded for not doing it.” After opening statements, Straub’s counsel made his objection to this remark as a violation of the motion in limine and asked that Pinkerton’s counsel be held in contempt. The court denied the request for a contempt finding, instructed all parties to review the motions in limine, and did not instruct the jury to disregard the statement. We consider Straub’s objection at the conclusion of opening statements to be untimely. See Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.-El Paso 1993, writ denied) (objections must be interposed in proceedings at a point so as to allow the trial court the opportunity to cure the alleged error). Furthermore, we do not find Pinkerton’s remarks so egregious as to constitute incurable error. Thus, Straub waived error by failing to lodge a timely objection to opposing counsel’s remarks that could have been cured by a jury instruction to disregard.

*3 Later, during cross-examination of another manager, Virginia Barton, Pinkerton’s counsel asked whether three of the motel employees were still working for the motel and the date these employees were “let go.” Although Pinkerton’s questions did not technically violate the motion in limine by inquiring as to the reasons motel employees were no longer employed, the question implied that the employees were terminated involuntarily after this incident happened. Straub failed to lodge a contemporaneous objection to Pinkerton’s question and has waived the right to protest any error that might have been cured at that time.

During voir dire and opening statements, Pinkerton’s counsel made indirect references to the fact that Gencom and Straub had reached a settlement between them. After opening statements, Gencom’s counsel complained of Pinkerton’s remarks. Straub’s counsel, however, did not object at this time or request a jury instruction. Subsequently, Straub’s counsel expressly withdrew any previous objection to the disclosure of the $10.75 million settlement Straub received from Gencom and Holiday Inn. Straub’s counsel elicited testimony from Straub on the settlement and submitted a jury question on the reasonableness of the settlement. Straub has waived error on this issue.

Straub argues further that Pinkerton made numerous references to the subject of Straub’s wealth at trial which probably caused the rendition of an improper judgment. Again, Straub failed to make a timely objection and request a jury instruction. We recognize, as Straub points out, that counsel for both sides approached the bench on four different occasions concerning evidence of wealth or money. However, on each occasion, an off-the-record bench conference was held, preserving nothing for appeal.

Furthermore, the record reveals that Straub’s own counsel referenced Straub’s wealth during voir dire and later elicited testimony from their own expert economist who explained that Straub had made over two million dollars in 1989 alone and over three million dollars in 1990. An objection is waived when testimony is admitted which is substantially the same as that to which is objected. Beall, 867 S.W.2d at 794 (citing Juhasz v. State, 827 S.W.2d 397, 401 (Tex.App.-Corpus Christi 1992, pet. ref’d)).

Straub complains of several more violations of the motion throughout the trial, including Pinkerton’s references to venue, lawsuit abuse, Straub’s wife who filed for divorce, the motion in limine that was filed, Straub’s personal habits, and references to Straub’s infidelity on the night of the incident. We have identified these instances of alleged impropriety in the record and some appear to be violations of the motion, while others are within the parameters of proper jury argument. In each instance, however, we again find that Straub failed to make a contemporaneous objection or request a jury instruction to disregard. Moreover, the arguments complained of did not constitute incurable error.

*4 Straub cites this Court to Dove, 857 S.W.2d at 577, and Burdick v. York Oil Co., 364 S.W.2d 766 (Tex.Civ.App.-San Antonio 1963, writ ref’d n.r.e.), for the proposition that numerous violations of a motion in limine may constitute reversible error. These cases are distinguishable though because objections were raised when improper evidence was offered, the objections were ruled upon, and the court either instructed the jury to disregard the evidence or have it stricken from the record.

We conclude that, regardless of whether some of Pinkerton’s remarks violated the motion in limine, none constitute incurable error. Thus, Straub was required to object, and in almost all instances, Straub failed to make a timely objection and request either a jury instruction or a mistrial. Straub’s first point of error is overruled.

Insurance

By his second point of error, Straub argues that he should be granted a new trial because Pinkerton injected the inadmissible issue of insurance into the record. Troy Smith was the roofing contractor who stored the building materials that blew off the motel’s roof and injured Straub. At trial, portions of Smith’s testimony were presented through his videotaped deposition by both Straub and Pinkerton. During Pinkerton’s presentation, the following excerpts from the deposition were played to the jury:

Q: Okay. That’s what I wanted to—“… Gencom about you’re not having insurance before the—“

A: See, I’ve done a lot of jobs for them out there on I–45. And I did the very same thing, just hire the people as I need them.

Q: What does the guy look like that you told you didn’t have insurance?

A: Oh, he’s about 5′6″.

Straub did not object during this testimony or after it concluded. Another witness was then called before the court recessed for lunch. Straub’s only objection came during the noon recess before testimony resumed, at which time the following exchange took place between the court and Straub’s counsel:

COURT: Mr. Edwards, I could give an instruction.

COUNSEL: I don’t want an instruction.

COURT: You’re not asking me for an instruction. You’re not going to ask me for a mistrial?

COUNSEL: No.

COURT: Do you want me just to tell him not to do it anymore?

COUNSEL That’s right.

COURT: Don’t do it anymore.

Straub argues that an instruction to the jury would have only magnified the harm from the improper reference to insurance and a motion for mistrial would have been premature because the record was insufficiently developed to allow any assessment of the likely harm from the error. We disagree. The mere mention of the word “insurance” should not result in an automatic mistrial or reversal. St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27, 33 (Tex.1965); Beall, 867 S.W.2d at 795. At a minimum, if the subject of insurance has been improperly mentioned, an instruction to disregard should be given. Gregory, 387 S.W.2d at 33. Failure to request the court to instruct the jury to disregard the inadmissible testimony results in waiver of the alleged error where the instruction would have cured the error. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n. 6 (Tex.1989). Straub concedes in his brief that Pinkerton’s wrongful injection of insurance into this case was curable error.

*5 We hold that Straub waived error by failing to make a timely objection and requesting an instruction from the court. Furthermore, even if error had been preserved, Smith was not a party in the case, and Straub did not demonstrate the harmful effect of the reference to Smith’s insurability. Appellant’s second point of error is overruled.

By his fourth point of error, Straub requests a new trial because cumulative error resulted in an improper judgment. Texas law recognizes that multiple errors, even if considered harmless taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful. Smerke v. Office Equip. Co., 138 Tex. 236, 158 S.W.2d 302, 304 (1941); Texas Health Enter., Inc. v. Krell, 828 S.W.2d 192, 210 (Tex.App.-Corpus Christi), vacated by agr., 830 S.W.2d 922 (Tex.1992). Because we have determined that Straub failed to preserve error in almost every instance, Straub’s fourth point of error is overruled.

By his third point of error Straub argues that the evidence is legally and factually insufficient to support the judgment. The burden of proof on the question whether Pinkerton was negligent was on appellant. Therefore, the correct legal and factual sufficiency challenges on appeal are that negligence was established by conclusive evidence or as a “matter of law” and the court’s failure to find was “against the great weight and preponderance of the evidence.” Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); see also Conrad v. Orellana, 661 S.W.2d 309, 313 (Tex.App.-Corpus Christi 1983, no writ). An appellant attacking the legal sufficiency of an adverse finding to an issue on which he had the burden of proof must demonstrate that the evidence conclusively established all vital facts in support of the issue. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). In reviewing a “matter of law” challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co. ., 767 S.W.2d 686, 690 (Tex.1989). Second, if there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

In reviewing a challenge that the jury finding is against the great weight and preponderance of the evidence, we first examine the record to determine if there is some evidence to support the finding. If there is some evidence, then we must determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In reviewing great weight points, we are mindful of the fact that the jury was not convinced by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

The jury charge asked whether Pinkerton’s negligence, if any, proximately caused the occurrence in question. The jury answered negatively as to Pinkerton, but affirmatively to Gencom, Holiday Inn, and Claude Straub. Thus, the question regarding the evidence before us is not whether Pinkerton was negligent, but whether Pinkerton’s negligent conduct, if any, proximately caused the injuries to Claude Straub.¹

*6 The components of proximate cause are cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995); Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex.App.-Corpus Christi 1997, no pet.). The test for cause-in-fact is whether the negligent act or omission was a substantial factor in bringing about injury and without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Id.

Pinkerton had been hired by the motel to provide guards for security patrols between 10 p.m. and 7 a.m. Part of Pinkerton’s duties included hourly patrols of the property to observe and report security and safety hazards, assistance to insure safety and security for all motel guests and employees, and observe and report any suspicious vehicles or activity on motel property. Gregory Dixon was the Pinkerton security guard assigned to the Holiday Inn on the evening of Straub’s injury and had been on this assignment for about three weeks prior to the incident. Dixon’s testimony reveals that he arrived for his evening shift at 10:00 p.m. He described weather conditions that night as “very windy” and noticed roofing materials blowing off the roof sometime after beginning his shift.² He knew the roof was under construction but had never seen materials blow off the roof before. He testified that he entered the motel office and told an employee that materials were blowing off of the roof and suggested that the motel caution people to be careful in the parking lot area. He also testified that he warned guests as he saw them during his patrol.

Alex Lopez was a motel employee who started his evening shift at 11:00 p.m. the same night. Lopez supplied an affidavit in this case wherein he described Dixon as a conscientious employee. Lopez did not refute that Dixon told him about the items flying off of the roof, but was simply unable to remember whether he was told. The night manager, Tim Walther, who was finishing his shift about the same time that Lopez was starting, also testified that Dixon may have told him about the roof, but he also could not remember.

As Dixon continued his patrol, the motel office notified him of an emergency through the two-way radio that he carried. Dixon came around to the side of the motel where he noticed Straub lying on the ground with a 4′ x 8′ sheet of “blackboard” roofing material next to him. Dixon described Straub as unresponsive, unconscious, and having black scuff marks on his face. Michael Basden, another motel employee, had just finished his shift and was leaving when he witnessed the material fly through the air and hit Straub in the head. Basden testified that he directed Lopez to call 911 and went over to assist Straub. Both Dixon and Basden waited with Straub until the ambulance arrived.

*7 Troy Smith, the roofing contractor hired by Gencom, testified that he had secured the blackboard roofing insulation on the roof by draping plastic over the stack of 4′ x 8′ sheets, placing two cinder blocks on top of the plastic at each end, and securing the bottom of the plastic with landscaping timbers. Based upon his experience, this procedure was sufficient to secure the material and protect it from the weather. It is undisputed that the strong winds caused the roofing materials to blow off of the roof.

Based upon this evidence, we conclude that the jury was free to believe that the strong winds and the improperly secured roofing material were the principal factor and proximate cause of Straub’s injury. Dixon, as Pinkerton’s employee, was not responsible for insuring that the roofing contractor’s construction materials were properly secured. Because we find some evidence to support the jury’s finding, Straub’s legal sufficiency challenge fails.

As to Straub’s factual sufficiency challenge, he argues that there is overwhelming, uncontroverted evidence of Pinkerton’s negligence. Straub contends Pinkerton was negligent in assigning the security guard position at the Holiday Inn to a 23–year–old man with no prior security experience and that Dixon acted negligently by walking into the motel office to notify an employee of flying debris rather than using a two-way radio. Straub also argues that there was conflicting testimony whether Dixon actually notified the motel of the hazards outside.

We are unable to find any evidence in the record indicating that Pinkerton had a duty to furnish the motel with “experienced” security guards. Moreover, there was testimony that Dixon had obtained a commission from the Texas Security Officer Institute and had submitted to the background checks and training that Pinkerton requires of all their security guards prior to giving them a security assignment. Regarding Dixon’s notice to the front desk, either mode of notice would have been effective and there is no evidence to indicate that any resulting delay, if any, proximately caused the injury to Straub. In addition, we do not find the evidence conflicting as to whether Dixon notified the front desk. Instead, two motel employees who were working about the time the incident occurred, testified only that Dixon may have told them, but they could not remember for sure.

Straub contends that Dixon was negligent in failing to maintain a post on the side of the building with the flying debris, but in direct contradiction of this argument, Straub argues that Dixon negligently failed to go up onto the roof to ascertain the conditions up there. We recognize, however, that Dixon was responsible for patrolling the entire motel property, and there was evidence that Dixon may have been looking for problem areas on the other side of the motel as well. We have also pointed out that Dixon was under no duty to secure the roofing contractor’s materials. It is apparent that Dixon was able to ascertain from the ground the same information he would have gained by going on the roof, i.e., that roofing materials were not properly secured. Additionally, we consider it prudent, rather than negligent, that Dixon made the decision not to go up on the roof during the middle of a storm with high winds and place himself in the extremely dangerous position of being struck by loose material with the possibility of being seriously injured himself or being knocked off the roof. Further, there was evidence to suggest that Dixon did not even have a key to access the roof hatch.

*8 Viewing the entire record in the appropriate light, we hold that the jury’s finding is not contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. As the fact finder, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Silva v. Enz, 853 S.W.2d 815, 817 (Tex.App.-Corpus Christi 1993, writ denied). In resolving contradictions and conflicts, the jury may choose to believe all, part, or none of the testimony of any one witness in arriving at the finding it determines is the most reasonable under the evidence. Id.

Appellant’s third point of error is overruled.

Accordingly, we AFFIRM the trial court’s judgment.

	Footnotes
1		The jury charge provided: “PROXIMATE CAUSE” means a cause that, in a natural and continuous sequence, produces an event, and without which the event would not have occurred. In order to be a proximate cause, the act or omission must be such that a person exercising ordinary care would foresee that the event produced, or some similar event, might reasonably result from the act or omission. There may be more than one proximate cause of an event, but if an act or omission of any person was the “sole proximate cause” of an occurrence, then no act or omission of any other person could have been a proximate cause.
2		Troy Smith, the roofing contractor, testified that he heard reports that the wind “got up to about 60, 70 miles an hour.”